Admissibility of Electronically Stored Information (ESI) Evidence Under the Nigerian Evidence Act - Matters Arising Version 1.1

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©2010 - Idara Akpan. All Rights Reserved All company and product names are trademarks or registered trademarks of their respective companies.

ADMISSIBILITY

OF

ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE

UNDER THE NIGERIAN EVIDENCE ACT – MATTERS ARISING

BY

IDARA AKPAN CHIEF HACKING OFFICER & DIRECTOR (BUSINESS DEVELOPMENT)

Email: [email protected] Telephone: 234 805 547 7646

NICHE KONSULT LIMITED

MARCH 26, 2010

mailto:[email protected]

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DEDICATION

Dedicated to JEHOVAH, the God of wisdom and the maker of heaven and earth, and by necessary implication, The Universal Sovereign who always accomplishes whatever he sets out to do despite all odds and without whom this work would have had little to no chance of being created in the first place!

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ACKNOWLEDGEMENTS

I am particularly grateful to Mfon Ekong Usoro, OOM, Managing Partner, Paul Usoro

& Co and Paul Usoro, SAN, Principal Partner, Paul Usoro & Co, your support is

invaluable; your contributions cannot be quantified in monetary terms.

I am grateful to Emem Isaac, Etido Isaac, Ima Akpan (Mrs), Ime Akpan, Esq.,

Mboutidem Isaac, Mfon-ido Isaac and Patience Mendinyo for their support, which

enabled me to concentrate on writing this paper.

Justis Publishing – The independent electronic publisher and provider of information

and software services for giving me access to intuitive searchable, full-text case law

and legislation from the UK, Ireland, Europe and International courts gratis!

LexisNexis – For giving me access to the LexisNexis Butterworth’s online service

gratis!

Watch Tower Bible and Tract Society for teaching me research skills and their value.

J. J. Ndana, Esq., for making numerous suggestions for the improvement of this

paper.

And with regard to this paper, I hold myself liable, to the exclusion of all other persons, for all or any misstatements, misrepresentations, and overstatements, innocent, negligent or otherwise.

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METHODOLOGY

The methodology adopted in this work consists mainly of an examination of textbooks, journals, casebooks, articles as well as materials sourced from the internet and drawing conclusions and analogies to the circumstances in Nigeria.

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TABLE OF CASES

CHAPTER 1 Anthony Okafor v Nwanneka Okpala (1995) 1 NWLR 749 Barkway V South Wales Transport Limited (1949) 1 KB 54A Bowskill v Dawson (1954) 1 QB 288 Edmonds v. Edmonds (1947) P 67 EFCC v Kayode Thisday March 27, 2009 p6 Elizabeth Anyaebosi v R. T. Brisco Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84 Esso West Africa v Oyegbola (1969) NMLR 194; (1969) NSCC 345 - 355 Evon v Noble (1949) 1 KB 222-225 Francis Idika v Kalu (1993) SCNJ 113 HMS Ltd v First Bank PLC (1991) 1 NWLR 290 Jacob v Attorney General of Akwa Ibom State (2002) 8 FWLR 86 57; (2002) 7 NWLR (Pt. 765) 18 Jarman v Lambert and Cooke (Contractors) Ltd (1951) 2 KB 937; (1952) ALL ER 355 Johnson v Todd (1843) 5 Beau 597; 49 ER 710 Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145) 661 Olu-Onagoruwa v The State (1993) 7 NWLR (Pt. 309) 49 esp. 81-82 Onyeanwusu v Okpukpara (1953) 14 WACA 21; 311 Paul Ordia v Piedmont (Nig) Ltd (1995) 2 NWLR 519 Peter Ogiogun v Idukpaye (1959) WRNLR 81 R v Itule (1961) ALL NLR 462 R v Lillyman (1896) 2 QB 167 R v Maqsud Ali (1965) 2 ALL ER 464, 471 R v Robson (1971) 56 Cr. App R 450, 456; (1972) 2 ALL ER 699, 703 Re Rowe (1956) P 70 Robinson v Stern (1939) 2 KB 260 Subramanian v The Public Prosecutor (1956) 1 WLR 965 The King v Daye (1908) 2 KB 333 Thrasyvoulou Loannou v. Papa Christo Foros Demetriou 1952 ALL ER 179 Tocker v Axre (1821) 3 PHILL 539; 161 ER 1408 Trade Bank PLC v Chami (2003) 13 NWLR (Pt. 836) 16 UBA v SAFDU (2004) 3 NWLR (Pt. 861) 516 Unity Life and Insurance Co Ltd v IBWA Ltd (2001) 7 NWLR (Pt. 713) 610 Watt v Watt (1909) 10 WLR 699 Yesufu v ACB (1976) ANLP (Pt. 1) 328

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CHAPTER 2 Armstrong v Executive Office of the President [810 F. Supp. 335 (D.D.C. 1993)] Covad Communications Co v Revonet, Inc [2008 WL 5377698 (D.D.C. Dec 24, 2008)] Doe v Norwald Community College [2007 WL 2066497 (D.Conn. July 16, 2007)] Doe v United States [805 F. Supp. 1513, 1517 (D. Hawaii. 1992)] Garton v Hunter (1969) 1 ALL ER 451 In re Krause [367 B.R. 740 (Bktcy.D.Kan. June 4, 2007)] In re NFL, Inc. Sec. Litig., [2007 WL 241344 (S.D.N.Y. January 30, 2007)] In re Sept 11th Liab, Ins, Coverage Cases [2007 WL 1739666 (S.D.N.Y. June 18, 2007)] Jacob v Attorney General of Akwa Ibom State (2002) 8 FWLR 86 57; (2002) 7 NWLR (Pt. 765) 18 Lorraine v Markel [2007 US Dist. LEXIS 33020 (D. Md. May 4, 2007)]; 241 F.R.D 534, 546 – 47 Oklahoma ex. Rel. Edmonsson v Tyson Foods, Inc., [2007 WL 1498973 (N.D. Okla. May 17, 2007)] Omychund v Barker (1745) 1 Atk, 21, 49, 26; ER 15, 33 R v Governor of Pentonville Prison, ex Parte Osman (1989) 3 ALL ER 701 Williams v Sprint/United Management Co. [230 F.R.D. 640 (D. Kan. 2005)] CHAPTER 3 H v Schering Chemicals 1978 H. No. 7465 Lords Advocate’s Reference No. 1 of 1992 Lorraine v Markel [2007 US Dist. LEXIS 33020 (D. Md. May 4, 2007)]; 241 F.R.D 534, 546 – 47 Subramanian v The Public Prosecutor (1956) 1 WLR 965 United States v Dupre [462 F.3d 131 (2nd Cir. 2006)] United States v Fujii [301 F. 3d 535 (7th Cir. 2002)] United States v Hamilton [413 F. 3d 1138, 1142-43 (10th Cir. 2005)] United States v Lopez-Moreno [420 F. 3d 436 (5th Cir. 2005)] United States v Robinson [272 Neb. 582, 724 N.W. 2d 35 (Neb. 2006)] United States v Salgada [250 F. 3d 438 (6th Cir. 2001)] United States v Saunders [749 F. 2d 195, 198 (5th Cir. 1984)] United States v Washington [498 F. 3d 225 (4th Cir. 2007)] CHAPTER 4 Bowman v Hodgson (1867) L.R. 1 P. & D. 362 Coles v Coles (1866) L.R. 1 P. & D. 70 Cooke v Tanswell (1818) 8 TAUNT 450; 129 ER 458 EFCC v Kayode Thisday March 27, 2009 p6

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Egbue v Araka (1996) 2 NWLR (Pt. 433) 688 at 710 paragraph B Gates Rubber v Bando Chemical Industries [167 F.R.D 90 (D. Colo. 1996)] Harris v Smith [372 F. 2d 806 (8th Cir. 1967)] In Re Vinhnee 336 B.R. 437, 444 (B.A.P. 9th. Cir. 2005) Lorraine v Markel [2007 US Dist. LEXIS 33020 (D. Md. May 4, 2007)]; 241 F.R.D 534, 546 – 47 Nathaniel Okeke v Okunkwe Obidife & Others (1965) NMLR 113; 1 ALL NLR 50; (1965) WNLR 107 Pilkington v Gray (1989) AC 401 R v Harringworth (1815) 4 M. & S. 350; 105 ER 863 Simeon Olusoji Kuforiji & Another v V.Y.B (Nigeria) Ltd (1981) 6-7 SC 40 UBA v SAFPU (2004) 3 NWLR (Pt. 861) 516 United States v DeGeorgia [420 F. 2d 889, 889 n. 11(9th Cir. 1969)] United States v Paulino [13 F. 3d 20, 22 (1st Cir. 1994)] United States v Tank [200 F. 3d 627 (9th Cir. 2000)] United States v Vela [673 F. 2d 86, 90(5th Cir. 1982)] Unity Life and Insurance Co Ltd v IBWA Ltd (2001) 7 NWLR (Pt. 713) 610 Whyman v Garth (1858) Ex 803; 153 ER 1578 Yesufu v ACB (1976) ANLP (Pt. 1) 328 CHAPTER 5 Armstrong v Executive Office of the President [810 F. Supp. 335 (D.D.C. 1993)] Bowman v. Hodgson (1867) L.R. 1 P & D. 362 Coles v. Coles (1866) L.R. 1 P. & D. 70 Covad v Revonet [2008 WL 5377698 (D.D.C Dev. 24, ] EFCC v Fani-Kayode- Thisday March 27, 2009 p 6 Elizabeth Anyaebosi v R T Briscoe Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84 Esso West Africa Inc v Oyegbola 1969 NMLR 194; NSCC 354-355 Lorraine v Markel [241 F.R.D 534, 546 – 47 (D. Md. 2007)] Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145) 661 Pilkington v. Gray (1989) AC 401 R v. Harringworth (Inhabitants) (1815) 4 M. & S. 350; 105 ER 863 Simeon Olusoji Kuforiji & Another v. V.Y.B (Nigeria) Ltd (1981) 6-7 SC 40 Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158 UBA v SAFDU (2004) 3 NWLR (Pt.861) 516 United States v. Tank [200 F.3d 627(9th Cir. 2000)] Unity Life and Insurance Co LTD v IBWA Ltd (2001) 7 NWLR (Pt.713) 610 Whyman v. Garth (1858) Ex 803; 153 ER 1578 Williams V Sprint/United Management Co [230 F.R.D 640 (D.Kan.2003)] Yesufu v ACB (1976) ANLP (Pt. 1) 328

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TABLE OF STATUTES

CHAPTER 1 A Bill for an Act to facilitate Electronic Transactions in Nigeria and for related Matters 2009 A Bill for an Act to provide for Electronic Messages, Information and Commerce and its Admissibility in Evidence and related Matters Advanced Fee Fraud Act & Other Related Offences Act 2006 Draft Computer Security and Critical Information Infrastructure Protection Bill 2005 Draft Cyber Security and Information Protection Agency (Establishment, ETC) Bill 2008 Electronic Transactions Bill 2009 Evidence Act (Amendment) Bill 2009 Evidence Ordinance No. 27 of 1943 Section 1(2) Evidence Act LFN 2004 Section 1(2)(a) Evidence Act LFN 2004 Section 1(2)(b) Evidence Act LFN 2004 Section 1(2)(c) Evidence Act LFN 2004 Section 1(3) Evidence Act LFN 2004 Section 1(4) Evidence Act LFN 2004 Section 10 Provincial Courts Ordinance 1914 Section 100 Evidence Act LFN 2004 Section 101 Evidence Act LFN 2004 Section 102 Evidence Act LFN 2004 Section 103 Evidence Act LFN 2004 Section 104 Evidence Act LFN 2004 Section 105 Evidence Act LFN 2004 Section 106 Evidence Act LFN 2004 Section 107 Evidence Act LFN 2004 Section 108 Evidence Act LFN 2004 Section 109 Evidence Act LFN 2004 Section 110 Evidence Act LFN 2004 Section 111 Evidence Act LFN 2004 Section 112 Evidence Act LFN 2004 Section 113 Evidence Act LFN 2004 Section 114 Evidence Act LFN 2004 Section 115 Evidence Act LFN 2004 Section 116 Evidence Act LFN 2004 Section 117 Evidence Act LFN 2004 Section 118 Evidence Act LFN 2004 Section 119 Evidence Act LFN 2004 Section 12 Provincial Courts Ordinance 1933

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Section 120 Evidence Act LFN 2004 Section 121 Evidence Act LFN 2004 Section 122 Evidence Act LFN 2004 Section 123 Evidence Act LFN 2004 Section 124 Evidence Act LFN 2004 Section 125 Evidence Act LFN 2004 Section 126 Evidence Act LFN 2004 Section 127 Evidence Act LFN 2004 Section 128 Evidence Act LFN 2004 Section 129 Evidence Act LFN 2004 Section 130 Evidence Act LFN 2004 Section 131 Evidence Act LFN 2004 Section 14 Supreme Courts Ordinance 1943 Section 140 Evidence Act LFN 2004 Section 186(1) Evidence Act LFN 2004 Section 2(1) Evidence Act LFN 2004 Section 2(1) Evidence Act LFN 2004 Section 214 Evidence Act LFN 2004 Section 258(1) Draft Evidence Decree 1998 Section 258(1)(a) Draft Evidence Decree 1998 Section 258(1)(b) Draft Evidence Decree 1998 Section 258(1)(c) Draft Evidence Decree 1998 Section 27 Evidence Ordinance 1943 Section 28 Evidence Ordinance 1943 Section 29 Evidence Ordinance 1943 Section 30 Evidence Ordinance 1943 Section 30 Magistrates Courts Ordinance 1943 Section 31 Evidence Ordinance 1943 Section 32 Evidence Ordinance 1943 Section 36(4)(b) Constitution of the Federal Republic of Nigeria 1999 Section 37 Evidence Act 1960 Section 38 Evidence Act LFN 2004 Section 4 Ordinance No. 4 of 1876 Section 4(2) Constitution of the Federal Republic of Nigeria 1999 Section 4(3) Constitution of the Federal Republic of Nigeria 1999 Section 5(a) Evidence Act LFN 2004 Section 5(a) Evidence Act LFN 2004 Section 5(a) Evidence Act LFN 2004 Section 5(a) Evidence Act LFN 2004 Section 6(1) Constitution of the Federal Republic of Nigeria 1999 Section 6(2) Constitution of the Federal Republic of Nigeria 1999 Section 6(5) Constitution of the Federal Republic of Nigeria 1999 Section 6(6) Constitution of the Federal Republic of Nigeria 1999

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Section 6(6) Constitution of the Federal Republic of Nigeria 1999 Section 74(2) Evidence Act LFN 2004 Section 77 Evidence Act LFN 2004 Section 78 Evidence Act LFN 2004 Section 79 Evidence Act LFN 2004 Section 80 Evidence Act LFN 2004 Section 81 Evidence Act LFN 2004 Section 82 Evidence Act LFN 2004 Section 83 Evidence Act LFN 2004 Section 84 Evidence Act LFN 2004 Section 85 Evidence Act LFN 2004 Section 86 Evidence Act LFN 2004 Section 87 Evidence Act LFN 2004 Section 88 Evidence Act LFN 2004 Section 89 Evidence Act LFN 2004 Section 90 Evidence Act LFN 2004 Section 91 Evidence Act LFN 2004 Section 91 Evidence Act LFN 2004 Section 91(1) Evidence Act LFN 2004 Section 91(1)(a)(i) Evidence Act LFN 2004 Section 91(1)(a)(ii) Evidence Act LFN 2004 Section 91(2) Evidence Act LFN 2004 Section 91(3) Evidence Act LFN 2004 Section 91(4) Evidence Act LFN 2004 Section 91(5) Evidence Act LFN 2004 Section 92 Evidence Act LFN 2004 Section 92(2) Evidence Act LFN 2004 Section 93 Evidence Act LFN 2004 Section 94 Evidence Act LFN 2004 Section 95 Evidence Act LFN 2004 Section 96 Evidence Act LFN 2004 Section 97 Evidence Act 1990 Section 97 Evidence Act LFN 2004 Section 97(1)(h) Evidence Act LFN 2004 Section 97(2)(e) Evidence Act LFN 2004 Section 98 Evidence Act LFN 2004 Section 99 Evidence Act LFN 2004 United States Federal Rules of Evidence Rule 1001 (1) CHAPTER 2

Federal Rules of Civil Procedure Rule 26(f) Federal Rules of Civil Procedure Rule 34 Federal Rules of Civil Procedure Rule 34(b)

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Federal Rules of Civil Procedure Rule 37(e) Section 1500 Evidence Code of California Section 232(1) Evidence Act (Amendment) Bill 2009 Section 232(2) Evidence Act (Amendment) Bill 2009 Section 234 Evidence Act (Amendment) Bill 2009 Section 234(1) Evidence Act (Amendment) Bill 2009 Section 234(2) Evidence Act (Amendment) Bill 2009 Section 255 Evidence Code of California Section 4 Evidence Act (Amendment) Bill 2009 Section 77 Evidence Act LFN 2004 Section 8 Civil Evidence Act 1995 Section 8(1)(b) Civil Evidence Act 1995 Section 94(1) Evidence Act LFN 2004 Section 94(2) Evidence Act LFN 2004 Section 94(3) Evidence Act LFN 2004 Section 94(4) Evidence Act LFN 2004 United States Federal Rules of Evidence Rule 1001(3) United States Federal Rules of Evidence Rule 1002 CHAPTER 3 Part 1 Civil Evidence Act 1968 Section 1(1) Civil Evidence Act 1995 Section 4 Civil Evidence Act 1995 Section 4 Criminal Evidence Act 1978 Section 4(1) Civil Evidence Act 1995 Section 4(2) Civil Evidence Act 1995 Section 4(2)(a) Civil Evidence Act 1995 Section 4(2)(b) Civil Evidence Act 1995 Section 4(2)(c) Civil Evidence Act 1995 Section 4(2)(d) Civil Evidence Act 1995 Section 4(2)(e) Civil Evidence Act 1995 Section 4(2)(f) Civil Evidence Act 1995 Section 5 Evidence Act LFN 2004 Section 76 Evidence Act LFN 2004 Section 77 Evidence Act LFN 2004 Section 8 Civil Evidence Act 1995 Section 9 Civil Evidence Act 1995 Section 9(1) Civil Evidence Act 1995 Section 9(2) Civil Evidence Act 1995 Section 9(2)(a) Civil Evidence Act 1995 Section 9(2)(b) Civil Evidence Act 1995 Section 9(3) Civil Evidence Act 1995

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Section 9(4) Civil Evidence Act 1995 Section 9(5) Civil Evidence Act 1995 Section 91 Evidence Act LFN 2004 United States Federal Rules of Evidence Rule 1001 United States Federal Rules of Evidence Rule 1002 United States Federal Rules of Evidence Rule 1003 United States Federal Rules of Evidence Rule 1004 United States Federal Rules of Evidence Rule 1005 United States Federal Rules of Evidence Rule 1006 United States Federal Rules of Evidence Rule 1007 United States Federal Rules of Evidence Rule 1008 United States Federal Rules of Evidence Rule 401 United States Federal Rules of Evidence Rule 403 United States Federal Rules of Evidence Rule 801 United States Federal Rules of Evidence Rule 801(1) United States Federal Rules of Evidence Rule 801(a) United States Federal Rules of Evidence Rule 801(b) United States Federal Rules of Evidence Rule 801(c) United States Federal Rules of Evidence Rule 801(d) United States Federal Rules of Evidence Rule 803 United States Federal Rules of Evidence Rule 803(6) United States Federal Rules of Evidence Rule 803(8) United States Federal Rules of Evidence Rule 804 United States Federal Rules of Evidence Rule 807 United States Federal Rules of Evidence Rule 901(a) United States Federal Rules of Evidence Rule 902(11) United States Federal Rules of Evidence Rule 902(12) CHAPTER 4 Federal Rules of Civil Procedure Rule 16(c)(3) Federal Rules of Civil Procedure Rule 26 Federal Rules of Civil Procedure Rule 26(a)(3) Federal Rules of Civil Procedure Rule 36 Federal Rules of Civil Procedure Rule 56(e) Section 10 Evidence Act LFN 2004 Section 100 Evidence Act LFN 2004 Section 101 Evidence Act LFN 2004 Section 101(1) Evidence Act LFN 2004 Section 101(2) Evidence Act LFN 2004 Section 102 Evidence Act LFN 2004 Section 102(1) Evidence Act LFN 2004 Section 103 Evidence Act LFN 2004

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Section 103(1) Evidence Act LFN 2004 Section 103(2) Evidence Act LFN 2004 Section 104 Evidence Act LFN 2004 Section 105 Evidence Act LFN 2004 Section 105(1) Evidence Act LFN 2004 Section 105(1)(a) Evidence Act LFN 2004 Section 105(1)(b) Evidence Act LFN 2004 Section 106 Evidence Act LFN 2004 Section 107 Evidence Act LFN 2004 Section 108 Evidence Act LFN 2004 Section 108(1) Evidence Act LFN 2004 Section 108(2) Evidence Act LFN 2004 Section 108(3) Evidence Act LFN 2004 Section 109 Evidence Act LFN 2004 Section 11(1) Evidence Act LFN 2004 Section 11(2) Evidence Act LFN 2004 Section 110 Evidence Act LFN 2004 Section 113 Evidence Act LFN 2004 Section 118 Evidence Act LFN 2004 Section 12(a) Evidence Act LFN 2004 Section 12(b) Evidence Act LFN 2004 Section 123 Evidence Act LFN 2004 Section 2(1) Evidence Act LFN 2004 Section 232(1) Evidence Act (Amendment) Bill 2009 Section 232(2) Evidence Act (Amendment) Bill 2009 Section 233 Evidence Act (Amendment) Bill 2009 Section 240 Evidence Act (Amendment) Bill 2009 Section 3 Evidence Act (Amendment) Bill 2009 Section 7 Evidence Act LFN 2004 Section 77 Evidence Act LFN 2004 Section 8 Evidence Act LFN 2004 Section 81 Evidence Act LFN 2004 Section 9(1) Evidence Act LFN 2004 Section 9(2) Evidence Act LFN 2004 Section 9(3) Evidence Act LFN 2004 Section 9(4) Evidence Act LFN 2004 Section 91(4) Evidence Act LFN 2004 Section 97 Evidence Act LFN 2004 Section 97(1)(h) Evidence Act LFN 2004 Section 97(2)(e) Evidence Act LFN 2004 United States Federal Rules of Evidence Rule 104 United States Federal Rules of Evidence Rule 104(b) United States Federal Rules of Evidence Rule 401

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United States Federal Rules of Evidence Rule 402 United States Federal Rules of Evidence Rule 403 United States Federal Rules of Evidence Rule 803(6) United States Federal Rules of Evidence Rule 901 United States Federal Rules of Evidence Rule 901(a) United States Federal Rules of Evidence Rule 901(b)(1) United States Federal Rules of Evidence Rule 901(b)(10) United States Federal Rules of Evidence Rule 901(b)(2) United States Federal Rules of Evidence Rule 901(b)(3) United States Federal Rules of Evidence Rule 901(b)(4) United States Federal Rules of Evidence Rule 901(b)(5) United States Federal Rules of Evidence Rule 901(b)(6) United States Federal Rules of Evidence Rule 901(b)(7) United States Federal Rules of Evidence Rule 901(b)(8) United States Federal Rules of Evidence Rule 901(b)(9) United States Federal Rules of Evidence Rule 902 United States Federal Rules of Evidence Rule 902(11) United States Federal Rules of Evidence Rule 902(5) United States Federal Rules of Evidence Rule 902(7) CHAPTER 5 Federal Rules of Civil Procedure Rule 34 Federal Rules of Civil Procedure Rule 34(2) Federal Rules of Civil Procedure Rule 37(e) Section 1 Civil Evidence Act 1995 Section 1 Evidence Act (Amendment) Bill 2009 Section 100 Evidence Act LFN 2004 Section 101 Evidence Act LFN 2004 Section 101(1) Evidence Act LFN 2004 Section 101(2) Evidence Act LFN 2004 Section 102 Evidence Act LFN 2004 Section 102(1) Evidence Act LFN 2004 Section 102(1) Evidence Act LFN 2004 Section 103 Evidence Act LFN 2004 Section 103(1) Evidence Act LFN 2004 Section 104 Evidence Act LFN 2004 Section 105 Evidence Act LFN 2004 Section 105(1) Evidence Act LFN 2004 Section 105(1) Evidence Act LFN 2004 Section 106 Evidence Act LFN 2004 Section 107 Evidence Act LFN 2004 Section 108 Evidence Act LFN 2004

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Section 108(1) Evidence Act LFN 2004 Section 108(2) Evidence Act LFN 2004 Section 108(3) Evidence Act LFN 2004 Section 123 Evidence Act LFN 2004 Section 2(1) Evidence Act LFN 2004 Section 232(1) Evidence Act (Amendment) Bill 2009 Section 232(2) Evidence Act (Amendment) Bill 2009 Section 232(2) Evidence Act (Amendment) Bill 2009 Section 233 Evidence Act (Amendment) Bill 2009 Section 234 of the Evidence Act (Amendment) Bill 2009 Section 234(1) Evidence Act (Amendment) Bill 2009 Section 234(2) Evidence Act (Amendment) Bill 2009 Section 240 of the Evidence Act (Amendment) Bill 2009 Section 3 Evidence Act (Amendment) Bill 2009 Section 37 Evidence Act 1960 Section 38 Evidence Act 1960 Section 4 Evidence Act (Amendment) Bill 2009 Section 8 (1) (b) UK Civil Evidence Act 1995 Section 8 Civil Evidence Act 1995 Section 8 Civil Evidence Act 1995 Section 9 Civil Evidence Act 1995 Section 97 Evidence Act 1990 Section 97 Evidence Act LFN 2004 Section 97(1)(h) Evidence Act LFN 2004 Section 97(2)(e) Evidence Act LFN 2004 Section 97(2)(e) Evidence Act LFN 2004 Sections 100 Evidence Act LFN 2004 Sections 232(1) Evidence Act (Amendment) Bill 2009 United States Federal Rules of Evidence 901(b)(10) United States Federal Rules of Evidence 901(b)(1) United States Federal Rules of Evidence 901(b)(2) United States Federal Rules of Evidence 901(b)(3) United States Federal Rules of Evidence 901(b)(4) United States Federal Rules of Evidence 901(b)(5) United States Federal Rules of Evidence 901(b)(6) United States Federal Rules of Evidence 901(b)(7) United States Federal Rules of Evidence 901(b)(8) United States Federal Rules of Evidence 901(b)(9) United States Federal Rules of Evidence Rule 1001(3) United States Federal Rules of Evidence Rule 803(6) United States Federal Rules of Evidence Rule 803(6) United States Federal Rules of Evidence Rule 803(8) United States Federal Rules of Evidence Rule 803(8)

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United States Federal Rules of Evidence Rule 901(a) United States Federal Rules of Evidence Rule 901(b)(1) United States Federal Rules of Evidence Rule 901(b)(10) United States Federal Rules of Evidence Rule 901(b)(2) United States Federal Rules of Evidence Rule 901(b)(3) United States Federal Rules of Evidence Rule 901(b)(4) United States Federal Rules of Evidence Rule 901(b)(5) United States Federal Rules of Evidence Rule 901(b)(6) United States Federal Rules of Evidence Rule 901(b)(7) United States Federal Rules of Evidence Rule 901(b)(8) United States Federal Rules of Evidence Rule 901(b)(9)

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TABLE OF ABBREVIATIONS

All ER – All England Report ALL NLR – All Nigeria Law Report CAP – Chapter CD – Compact Disc DNA - Deoxyribonucleic Acid DOJ – Department of Justice of the United States ESI – Electronically Stored Information FRCP – Federal Rules of Civil Procedure FRE – Federal Rules of Evidence FWLR – Federation Weekly Law Report KB - King’s Bench LFN – Laws of the Federation of Nigeria MD5 – Message Digest algorithm 5 is a widely used cryptographic has function with a 128-bit hash value. Source: http://en.wikipedia.org/wiki/MD5 MR- Master of the Rolls NCC – Nigerian Communications Commission NITDA – National Information Technology Development Agency NWLR – Nigeria Weekly Law Report PDF- Portable Document Format is a file format created by Adobe Systems in 1993 for document exchange. PDF is used for representing two-dimensional documents in a manner independent of the application software, hardware, and operating system Source: http://en.wikipedia.org/wiki/Portable_Document_Format QB – Queen’s Bench

http://en.wikipedia.org/wiki/MD5

http://en.wikipedia.org/wiki/Portable_Document_Format

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SAN – Senior Advocate of Nigeria SCNJ –Supreme Court of Nigeria Judgement SHA - The SHA hash functions are a set of cryptographic hash functions designed by the National Security Agency (NSA) and published by the NIST as a U.S. Federal Information Processing Standard. SHA stands for Secure Hash Algorithm. The three SHA algorithms are structured differently and are distinguished as SHA-0, SHA-1, and SHA-2. The SHA-2 family uses an identical algorithm with a variable digest size which is distinguished as SHA-224, SHA-256, SHA-384, and SHA-512. Source: http://en.wikipedia.org/wiki/SHA_hash_functions TIFF – Tagged Image File Format is a file format for storing images. Source: http://en.wikipedia.org/wiki/Tagged_Image_File_Format UK - United Kingdom US – United States

http://en.wikipedia.org/wiki/SHA_hash_functions

http://en.wikipedia.org/wiki/Tagged_Image_File_Format

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SUMMARY OF CONTENTS

DEDICATION ............................................................................................................................................ 2

ACKNOWLEDGEMENTS ........................................................................................................................... 3

METHODOLOGY ...................................................................................................................................... 4

TABLE OF CASES ...................................................................................................................................... 5

TABLE OF STATUTES ................................................................................................................................ 8

TABLE OF ABBREVIATIONS .................................................................................................................... 17

SUMMARY OF CONTENTS ..................................................................................................................... 19

TABLE OF CONTENTS ............................................................................................................................. 20

CHAPTER 1: THE EVIDENCE ACT IS NOT GOOD ENOUGH! .................................................................... 26

CHAPTER 2: THE BEST EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE

.............................................................................................................................................................. 52

CHAPTER 3: THE HEARSAY EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE .............................................................................................................................................. 71

CHAPTER 4: AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) ......................... 87

CHAPTER 5: CONCLUSION AND RECOMMENDATIONS ....................................................................... 113

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TABLE OF CONTENTS

DEDICATION ............................................................................................................................................ 2

ACKNOWLEDGEMENTS ........................................................................................................................... 3

METHODOLOGY ...................................................................................................................................... 4

TABLE OF CASES ...................................................................................................................................... 5

CHAPTER 1 .......................................................................................................................................... 5

CHAPTER 2 .......................................................................................................................................... 6

CHAPTER 3 .......................................................................................................................................... 6

CHAPTER 4 .......................................................................................................................................... 6

CHAPTER 5 .......................................................................................................................................... 7

TABLE OF STATUTES ................................................................................................................................ 8

CHAPTER 1 .......................................................................................................................................... 8

CHAPTER 2 ........................................................................................................................................ 10

CHAPTER 3 ........................................................................................................................................ 11

CHAPTER 4 ........................................................................................................................................ 12

CHAPTER 5 ........................................................................................................................................ 14

TABLE OF ABBREVIATIONS .................................................................................................................... 17

SUMMARY OF CONTENTS ..................................................................................................................... 19

TABLE OF CONTENTS ............................................................................................................................. 20

ABSTRACT .......................................................................................................................................... 25

CHAPTER 1: THE EVIDENCE ACT IS NOT GOOD ENOUGH! .................................................................... 26

CHAPTER SUMMARY ......................................................................................................................... 26

SOURCES OF THE NIGERIAN LAW OF EVIDENCE ............................................................................... 27

ADMISSIBILITY AND INADMISSIBILITY OF EVIDENCE AND SECTION 5(a) EVIDENCE ACT ................. 27

THE EFFECTS OF SECTION 5(a) EVIDENCE ACT LFN 2004 .................................................................. 28

APPLICABILITY OF THE EVIDENCE ACT .............................................................................................. 30

SUB-DIVISIONS OF THE LAW OF EVIDENCE ...................................................................................... 30

PRIMARY EVIDENCE .......................................................................................................................... 31

SECONDARY EVIDENCE ..................................................................................................................... 31

DIRECT/TESTIMONIAL EVIDENCE ...................................................................................................... 32

CIRCUMSTANTIAL EVIDENCE ............................................................................................................ 33

PRIMA FACIE EVIDENCE .................................................................................................................... 33

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CONCLUSIVE EVIDENCE..................................................................................................................... 34

REAL EVIDENCE ................................................................................................................................. 34

INSUFFICIENT EVIDENCE ................................................................................................................... 34

HEARSAY EVIDENCE .......................................................................................................................... 34

“ADMISSIBLE”, “ADMISSIBLE EVIDENCE” AND “ADMISSIBILITY” DEFINED ...................................... 35

ADMISSIBLE DEFINED ........................................................................................................................ 35

ADMISSIBLE EVIDENCE (noun) ...................................................................................................... 35

ADMISSIBILITY ............................................................................................................................... 35

“ELECTRONICALLY STORED INFORMATION” (ESI) DEFINED ............................................................. 36

POWERS OF NIGERIAN COURTS WITH RESPECT TO ADMISSIBILITY ................................................. 36

DEFINITION OF “DOCUMENT” UNDER THE EVIDENCE ACT .............................................................. 38

DEFINITION OF “DOCUMENT” AS PROPOSED BY THE NIGERIAN LAW REFORM COMMISSION ...... 38

DEFINITION OF “DOCUMENT” BY BLACK’S LAW DICTIONARY .......................................................... 39

JUDICIAL DEFINITION OF “DOCUMENT” ........................................................................................... 39

DEFINITION OF “DOCUMENT” IN THE UNITED STATES FEDERAL RULES OF EVIDENCE – Rule 1001(1)

.......................................................................................................................................................... 39

DOCUMENTARY EVIDENCE AND THE EVIDENCE ACT ....................................................................... 40

ADMISSIBILITY OF DOCUMENTARY EVIDENCE AS TO FACTS-IN-ISSUE (SECTION 91 EVIDENCE ACT

LFN 2004) .......................................................................................................................................... 40

COMMENTS ON SECTION 91 ......................................................................................................... 42

WEIGHT TO BE ATTACHED TO DOCUMENTARY EVIDENCE (SECTION 92 EVIDENCE ACT) ................ 45

COMMENTS ON SECTION 92 ......................................................................................................... 45

DISTINGUISHING BETWEEN ADMISSIBILITY & WEIGHT OF EVIDENCE ..................................... 45

ILLITERACY – A CIRCUMSTANCE THAT CAN INFLUENCE WEIGHT ............................................. 46

ONE AFFIRMATIVE OR SEVERAL NEGATIVE WITNESSES – A CIRCUMSTANCE THAT CAN

INFLUENCE WEIGHT .................................................................................................................. 46

CORROBORATION ..................................................................................................................... 46

ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN NIGERIA .............. 47

CONFLICTING PRONOUNCEMENTS OF NIGERIAN COURTS ON THE “PROBATIVE VALUE” OF

ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE ............................................................... 49

AMENDMENTS TO THE EVIDENCE ACT ............................................................................................. 50

CHAPTER 2: THE BEST EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE

.............................................................................................................................................................. 52

CHAPTER SUMMARY ......................................................................................................................... 52

THE BEST EVIDENCE RULE DEFINED .................................................................................................. 53

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THE RATIONALE BEHIND THE BEST EVIDENCE RULE ......................................................................... 53

THE BEST EVIDENCE RULE IN THE EVIDENCE ACT ............................................................................. 54

THE BEST EVIDENCE RULE AT PLAY IN A NIGERIAN COURT .............................................................. 55

IS THE BEST EVIDENCE RULE COMPATIBLE WITH ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE .......................................................................................................................................... 56

IS THE BEST EVIDENCE RULE RELEVANT TODAY? ............................................................................. 57

THE BEST EVIDENCE RULE UNDER THE US FEDERAL RULES OF EVIDENCE (FRE 1002) ..................... 58

THE COMPUTER “BEST EVIDENCE” *RULE FRE 1001(3)+ IN THE US .................................................. 59

WHAT THEN IS AN ACCURATE REFLECTION IN THE SENSE OF RULE 1001(3)? ................................. 60

WHAT THEN IS AN “ACCURATE REFLECTION” IN THE SENSE OF RULE 1001(3)? .............................. 62

THE CIVIL EVIDENCE ACT 1995 AND THE BEST EVIDENCE RULE ....................................................... 62

THE BEST EVIDENCE WITH RESPECT TO ELECTRONICALLY STORED INFORMATION NEED NOT BE A

COMPUTER PRINT-OUT – COVAD V REVONET AS A CASE STUDY..................................................... 63

COMMENTS ................................................................................................................................... 65

COMPUTER PRINTOUTS MAY NOT BE BEST EVIDENCE .................................................................... 66

METADATA AND THE BEST EVIDENCE RULE AKA “COMPUTER PRINT-OUTS ARE DEFINITELY NOT

BEST EVIDENCE” ................................................................................................................................ 66

ONE TOOL FOR PROVING THAT ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IS AN

ACCURATE REFLECTION .................................................................................................................... 68

PROPOSED MODIFICATIONS TO THE BEST EVIDENCE RULE IN NIGERIA .......................................... 70

CHAPTER 3: THE HEARSAY EVIDENCE RULE AND ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE .............................................................................................................................................. 71

CHAPTER SUMMARY ..................................................................................................................... 71

DEFINITION OF HEARSAY .................................................................................................................. 72

ADMISSIBILITY OR OTHERWISE OF HEARSAY EVIDENCE .................................................................. 72

IS THE COMMON LAW RULE AGAINST HEARSAY IN FORCE IN NIGERIA? ......................................... 72

HEARSAY EVIDENCE IN NIGERIAN LAW ............................................................................................ 73

REASONS FOR THE EXCLUSION OF HEARSAY EVIDENCE IN NIGERIA ................................................ 74

HEARSAY RULE EXCEPTIONS IN NIGERIAN LAW ............................................................................... 74

THE HEARSAY RULE, ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AND THE UNITED

STATES ............................................................................................................................................... 75

EXCEPTIONS TO THE HEARSAY RULE SET FORTH IN FRE RULE 801 (D) ............................................. 76

ESI AND THE BUSINESS RECORDS EXCEPTION IN THE US [FRE Rule 803(6)] .................................... 76

ESI AND THE PUBLIC RECORDS EXCEPTION IN THE US [FRE Rule 803(8)] ........................................ 78

ESI EVIDENCE MAY OR MAY NOT BE HEARSAY ................................................................................. 79

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ESI EVIDENCE AS HEARSAY ............................................................................................................ 79

ESI EVIDENCE AS NON-HEARSAY ................................................................................................... 79

THE HEARSAY RULE, ESI EVIDENCE AND THE RULING IN LORRAINE V. MARKEL .......................... 81

THE HEARSAY EVIDENCE RULE, ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AND THE

UK ...................................................................................................................................................... 82

WEIGHT TO BE ATTACHED TO HEARSAY EVIDENCE IN THE UK ........................................................ 83

BUSINESS AND PUBLIC RECORDS EXCEPTIONS TO THE HEARSAY RULE ........................................... 84

JUDICIAL DETERMINATION OF A “RECORD” ..................................................................................... 85

ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AS A EXCEPTION TO THE HEARSAY

EVIDENCE RULE IN THE UK ................................................................................................................ 86

CHAPTER 4: AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) ......................... 87

CHAPTER SUMMARY ..................................................................................................................... 87

NOTES ON AUTHENTICATION – WIKIPEDIA ...................................................................................... 88

AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE ........................ 88

AUTHENTICITY AND RELEVANCY ....................................................................................................... 90

CHALLENGES TO AUTHENTICITY ....................................................................................................... 93

AUTHENTICATION, AUTHENTICITY AND THE EVIDENCE ACT ........................................................... 93

AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – STATUTORY PROVISIONS ............. 94

SECTION 100 EVIDENCE ACT LFN 2004 ......................................................................................... 94

COMMENTARY ON SECTION 100 .................................................................................................. 94

SECTION 101(1) EVIDENCE ACT LFN 2004 ..................................................................................... 94

COMMENTARY ON SECTION 101(1) .............................................................................................. 94










COMMENTARY ON SECTION 105 (1) ............................................................................................. 96



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SELF-AUTHENTICATING DOCUMENTS UNDER THE EVIDENCE ACT .................................................. 98

AUTHENTICATION ON NON SELF–AUTHENTICATING DOCUMENTS IN NIGERIA (AUTHENTICATION

PROCEDURES FOR PRIVATE DOCUMENTS) ..................................................................................... 100

AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN NIGERIAN

COURTS – EFCC v. KAYODE ............................................................................................................. 100

COMMENTARY ............................................................................................................................ 101

AUTHENTICATION OF DOCUMENTARY EVIDENCE IN THE US – STATUTORY PROVISIONS ............. 102

SELF-AUTHENTICATING DOCUMENTS UNDER THE US FEDERAL RULES OF EVIDENCE .................. 103

AUTHENTICATION OF NON-SELF AUTHENTICATING DOCUMENTS IN THE UNITED STATES .......... 106

AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN UNITED STATE

COURTS – LORRAINE v. MARKEL .................................................................................................... 107


COURTS – IN RE VINHNEE .............................................................................................................. 109

COMMENTARY ............................................................................................................................ 110


COURTS – UNITED STATES V TANK ................................................................................................. 111

COMMENTARY ............................................................................................................................ 112

CHAPTER 5: CONCLUSION AND RECOMMENDATIONS ....................................................................... 113

SUMMARY OF NIGERIAN CASES INVOLVING ESI EVIDENCE ........................................................... 113

THE EVIDENCE ACT IS NOT GOOD ENOUGH! .................................................................................. 114

DEFINITION OF THE TERM “DOCUMENT” ................................................................................... 117

THE BEST EVIDENCE RULE AND ESI ................................................................................................. 117

PROPOSED AMENDMENTS TO THE BEST EVIDENCE RULE ......................................................... 120

HEARSAY EVIDENCE RULE AND ESI EVIDENCE ................................................................................ 120

PROPOSED AMENDMENTS TO THE HEARSAY EVIDENCE RULE .................................................. 121

AUTHENTICATION AND ESI EVIDENCE ............................................................................................ 121

AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – SECTIONS OF THE EVIDENCE ACT

THAT NEED TO BE MODIFIED ...................................................................................................... 122

AUTHENTICATION – THE WAY FORWARD IN RESPECT OF ESI .................................................... 123

“ELECTRONICALLY STORED INFORMATION” (ESI) – MORE THAN JUST COMPUTER PRINT-OUTS . 124

FINAL OBSERVATIONS ..................................................................................................................... 125

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ABSTRACT

Of course, that documentary evidence is admissible in Nigeria in certain circumstances is a matter of fact. However, the admissibility of electronically stored information (ESI) evidence is a matter still subject to considerable debate, as is evident from the conflicting decisions of the Supreme Court, Court of Appeal and the Federal High Court.

While the Supreme Court has tended to consistently interpret the Evidence Act liberally to accommodate ESI evidence, its immediate subordinate, the Court of Appeal, would seem to be less favourably so disposed. Far worse is the Federal High Court, though supposed to be bound by the principle of judicial precedent, for about a year ago, in March 2009 precisely, that court sitting in Lagos, ruled against the admissibility of ESI evidence in a high profile case, demanding that certain conditions needed to be met for it to be in a position to do so.

Given the pervasiveness of the computer and related technologies and the huge reliance now placed on them, it is a matter of time before ESI (evidence) becomes a recurrent decimal in litigation in Nigeria.

This paper aims to briefly discuss some requirements for the admissibility of ESI evidence.

In particular, the following requirements will be treated.

- The Best Evidence Rule - The Hearsay Evidence Rule - Authenticity

In Chapter One, the discussion as to whether the Evidence Act is good enough is canvassed.

Chapter Two of the long essay discusses the Best Evidence Rule and Electronically Stored Information (ESI) evidence.

The Hearsay Evidence Rule and Electronically Stored Information (ESI) evidence is extensively discussed in Chapter Three of this work.

Chapter Four treats authentication and relevancy in relation to Electronically Stored Information (ESI) evidence.

Finally, a number of recommendations will be made to place the Nigerian legal system in a better position to permit the admissibility of accurate, authentic and reliable ESI records into evidence.

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CHAPTER 1: THE EVIDENCE ACT IS NOT GOOD ENOUGH!

CHAPTER SUMMARY

This chapter will trace the history of the law of evidence in Nigeria, discuss the

admissibility and inadmissibility of evidence under the Evidence Act, treat the various

classifications of evidence applicable to Nigerian law; it will also define key

terminologies used throughout this work like admissible, admissible evidence,

admissibility and electronically stored information (ESI).

Powers of Nigerian courts with respect to admissibility, weight to be attached to

documentary evidence as well as the admissibility of electronically stored

information (ESI) evidence in Nigeria will also be considered.

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SOURCES OF THE NIGERIAN LAW OF EVIDENCE

Initially, the main source of the law of evidence in force in the Magistrate Courts and the High Court, (then known as the Supreme Court) during the Colonial days in the territory that became Nigeria, was the English Common Law of Evidence and the rules of evidence contained in British legislation such as Section 10 Provincial Courts Ordinance 1914 Section 12 Provincial Courts Ordinance 1933 Section 30 Magistrates Courts Ordinance 1943 Section 14 Supreme Courts Ordinance 1943 as well as Section 4 Ordinance No.4 of 1876 which provided for the application of

English Common Law, Equity and Statutes of General Application passed on or before 1900.1

Subsequently the Evidence Ordinance No. 27 of 1943, which was based on the Digest of the Law of Evidence by Sir James F. Stephen and which became operational in 1945, Notice 618, became the main source of the law of Evidence. Since October 1, 1960, the Evidence Ordinance came to be known as the Evidence Act. That Evidence Act was later incorporated into the Laws of the Federation CAP 112 LFN 1990 and CAP E14 LFN 2004 respectively. The Evidence Act as contained in CAP E14 LFN 2004 is now the major source of the Nigerian Law of Evidence.2 Section 4 (2) and (3) Constitution of the Federal Republic of Nigeria 1999 as well as Part 1 of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria 1999 have made Evidence matters the exclusive preserve of the Federal Government.

ADMISSIBILITY AND INADMISSIBILITY OF EVIDENCE AND SECTION 5(a)

EVIDENCE ACT

Section 5(a) Evidence Act LFN 2004 however makes provision for the applicability of other laws (hence our previous consistent use of the term “main source” in respect of the Evidence Act.)

1 Nwadialo, F. Modern Nigeria Law of Evidence. (1981) Benin City, Nigeria, Ethiope & Publishing Co. (p.7)

2 Aguda, T. (1999) Aguda: The Law of Evidence, 4

th Edition. Ibadan: Spectrum Books Ltd (p.4)

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It provides:

“Nothing in this Act shall prejudice the admissibility of any evidence which would apart from the provisions of this Act be admissible.”

THE EFFECTS OF SECTION 5(a) EVIDENCE ACT LFN 2004

Although the Evidence Act LFN 2004 is the main source of the law of evidence in Nigeria, the English Common Law of Evidence or, any relevant local statute may be resorted to for the purpose of supplementing the provisions of the Act where necessary. This means that

(1) It is possible to admit in evidence, any evidence which is admissible under any other Nigerian statutory enactment

(2) Any other evidence which would have been admissible under the Common Law had the Act not been passed, will still be admissible , i.e., under the rules as they existed by June 1, 1945

The value of Section 5(a) Evidence Act LFN 2004 is seen where the Act does not provide for the admissibility of a matter but such a matter is admissible under a Common Law rule. The principle in Section 5(a) Evidence Act LFN 2004 was discussed in Onyeanwusi v. Okpukpara3 in which the West African Court of Appeal observed:

It is the Evidence Act, or if it is silent, the Common Law of England that applies in this court.

In R v. Itule4, the court in considering whether a confession which goes in favour of an accused person is admissible as evidence in favour of the accused, Brett Ag C.J.F said that:

the matter is not dealt with expressly in Sections 27 to 32 of the Evidence Ordinance and the common law rule therefore applies by virtue of Section 5(a)

In summary then, where the Act is silent, then the court can make use of the Common Law to admit the evidence in question, provided that it is relevant.

3 (1953) 14 WACA 21;311

4 (1961) ALL NLR 462

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However, the principle that evidence admissible under the Common Law is also admissible under the Act cannot be applied in reverse. It is not the intention of Section 5(a) Evidence Act LFN 2004 that evidence inadmissible under the Common Law is also inadmissible under the Act, or under any other statute applicable in Nigeria. In practice then, any rules of Common Law governing the exclusion of evidence are inapplicable in Nigeria, unless such rules have been incorporated into the Act. And where this is so, Nigerian courts can look up to English decisions as guides to interpret such Nigerian statutory provisions. But where the Evidence Act LFN 2004 has declared that a certain piece of evidence is inadmissible, then such evidence cannot be admitted by any rules of common law. Another effect of Section 5(a) Evidence Act LFN 2004 is that other sources of evidence include:

(i) Customs (ii) The courts through judicial precedents

(iii) The legislature through the promulgation of Acts, Laws and Edicts Other Nigerian statutory enactments on the admissibility of Evidence include Sections 36 (4)(b) of the Constitution of the Federal Republic of Nigeria 1999 and the Advance Fee Fraud Act and other Related Offences Act, 2006. Proposed statutory enactments either on or related to the admissibility of electronically generated information (in no particular order) include:

1. A Bill for an Act to Amend the Evidence Act CAP E14 LFN 2004 sponsored by Senator Sola Akinyede (Ekiti South)

2. A Bill for an Act to facilitate the use of Information represented in Electronic Form or other Media regardless of the Technology employed for Conducting Transactions in Nigeria sponsored by the National Information Technology Development Agency (NITDA) also called Electronic Transactions Bill (2009)

3. A Bill for an Act to facilitate Electronic Transactions in Nigeria and for related Matters 2009 sponsored by Hon. Uzoma Nkem- Abonta

4. A Bill for an Act to provide for Electronic Messages, Information and Commerce and its Admissibility in Evidence and related Matters which according to Paul Usoro, SAN “provides that information shall not be denied

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legal effect solely on the grounds that it is in the form of an electronic document.”5

5. The Draft Computer Security and Critical Information Infrastructure Protection Bill 2005

6. The Draft Cyber Security and Information Protection Agency (Establishment, ETC) Bill 2008

APPLICABILITY OF THE EVIDENCE ACT

Section 1(2) Evidence Act LFN 2004 has the effect that the Evidence Act will have the force of law in “all judicial proceedings in or before any court established in the Federal Republic of Nigeria” Section 1(2) Evidence Act LFN 2004 also has the effect that the Evidence Act will not have the force of law in

a) proceedings before an arbitrator b) proceedings before a field general court martial

Section 1(2)(c) Evidence Act LFN 2004 has the effect that the Evidence Act will not have the force of law in any civil court or matter before a Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court unless the Commander-in-Chief of the Armed Forces or the Military Governor or Administrator of a State publishes in the Gazette or confers upon any or all of the above courts the power to enforce any or all the provisions of the Act. (emphasis mine) Section 1(3) Evidence Act LFN 2004 has the effect that the Evidence Act will have the force of law before “an Area Court” in relation to “criminal matters before them” Section 1(4) Evidence Act LFN 2004 has the effect that the Evidence Act, in particular “the provisions of Section 138 – Section 143”, will bind “the area courts”.

SUB-DIVISIONS OF THE LAW OF EVIDENCE

1. Primary Evidence 2. Secondary Evidence 3. Direct Evidence 4. Circumstantial Evidence 5. Prima facie Evidence 6. Conclusive Evidence

5 Paul Usoro, SAN, November 2007, The Law as it relates to Internet and Internet Activities, paper presented at

the NCC workshop for Judges on Legal Issues in Telecommunications, Abuja

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7. Real Evidence 8. Insufficient Evidence 9. Hearsay Evidence

PRIMARY EVIDENCE

Primary Evidence means the document itself produced before the court for it to inspect, read and construe its contents. This is the best form of evidence as no other form of evidence carries the weight it possesses. It is the most certain and overriding proof of an asserted fact. The original of a document is the primary evidence.6 (See Jacob v. Attorney General of Akwa Ibom State7) It should be noted that it is usually private documents that may be proved by primary evidence.

SECONDARY EVIDENCE

Secondary evidence means copy or copies or duplicates of the content of the original document produced before the courts for it to inspect, read and construe its contents. Secondary evidence as the name implies suggests the existence of better evidence. Although the general rule is that all documents must be proved by primary evidence, a number of exceptions exist to this rule. When a private document cannot be proved by primary evidence, secondary evidence is admissible8. Section 95 of the Evidence Act LFN 2004 defines secondary evidence to include inter alia:

6 Nokes, G.D (1967) An Introduction to Evidence.4

th Edition London, Great Britain: Sweet and Maxwell

7 2002(8) FWLR (Pt. 86) 57; (2002) 7 NWLR (Pt. 765)18

8 Nokes, G.D (1967) An Introduction to Evidence.4th

Edition London, Great Britain: Sweet and Maxwell

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(a) certified copies given under the provisions hereinafter contained;

(b) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(c) copies made from or compared with the original;

(d) counterparts of documents as against the parties who did not execute them.

(e) oral accounts of the contents of a document given by some person who has himself seen it.

On the strength of that Section, and the definition of primary evidence in Section 94 Evidence Act LFN 2004, some Nigerian Courts including the Supreme Court have defined computer print-outs as secondary evidence. According to Honourable Justice Iyizoba “computer print-outs cannot be primary evidence because they are translated from magnetic tapes and other automated and electronic devices. The magnetic tapes and other electronic devices are the primary evidence but these cannot be tendered in court because they are not easily movable and are in machine language not comprehensible to us. Computer print-outs are therefore secondary evidence.”9

DIRECT/TESTIMONIAL EVIDENCE

This is an oral statement/assertion on oath in court by a witnesses offered as proof of the truth of a fact or facts stated by him10. The one giving direct evidence must have personally

i) seen the fact ii) heard the fact iii) perceived the fact iv) held the opinion

9 Hon. Justice Chinwe F. Iyizoba, Admissibility of Documentary/Electronic Evidence: Issues, Challenges and Options. Available from: “http://nji.gov.ng/index2.php?option=com_docman&task=doc_view&gid=91&itemid=163”*Accessed

22/01/2010]


Edition London, Great Britain: Sweet and Maxwell

http://nji.gov.ng/index2.php?option=com_docman&task=doc_view&gid=91&itemid=163

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which he now asserts before the court. (Section 77 Evidence Act LFN 2004)

However in the majority of cases, the term is used in relation to the evidence of one who actually saw the commission of an act.

CIRCUMSTANTIAL EVIDENCE

This is any fact from which the existence of a fact-in-issue may be inferred. This sort of evidence is usually oral11. Circumstantial evidence is often a last resort, i.e., it is used where direct evidence is unavailable. Evidence is said to be circumstantial (as opposed to direct evidence) when there are a number of circumstances which, when accepted, make a complete and unbroken chain of evidence. In Francis Idika Kalu v. State12 the accused and the deceased were alone in a room, and the deceased was later found dead while the accused was found standing beside the deceased with a blood stained matchet. Even though the accused was not caught killing the deceased, there being no direct evidence to that effect, the Supreme Court upheld his conviction when it said: “the evidence adduced, cogently , irresistibly pointed to the appellant as the murderer.”

PRIMA FACIE EVIDENCE

This phrase is sometimes used to denote evidence which establishes a prima facie case in favour of the party adducing it to judgement if not contradicted13. In a criminal trial, when prima facie evidence is adduced, the court of law loses its competence to convict the accused until the accused enters his defence. (Olu – Onagoruwa v. The State14)

11 Nokes, G.D (1967) An Introduction to Evidence.4

th Edition London, Great Britain: Sweet and Maxwell p 11

12 1993 SCNJ 113


Edition London, Great Britain: Sweet and Maxwell p 13

14

1993 7 NWLR (pt.309) 49 esp. 81-82

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CONCLUSIVE EVIDENCE

This is evidence which cannot be contradicted15. An example is the criminal culpability of a child under 7 years.

REAL EVIDENCE

Nokes, G.D (1967) defines real evidence as “anything other than a document which is examined by the tribunal as a means of proof16.”

INSUFFICIENT EVIDENCE

Evidence is said to be insufficient where, in support of a party case, it is also inadequate such that a reasonable man cannot give judgement in favour of such a party. Evidence may be insufficient even if a case is not defended.

HEARSAY EVIDENCE

In Subramanian v. Public Prosecutor the Judicial Committee of the Privy Council stated

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” 17





17

1956 1 WLR 965

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“ADMISSIBLE”, “ADMISSIBLE EVIDENCE” AND “ADMISSIBILITY” DEFINED

ADMISSIBLE DEFINED

A term used to describe information that is relevant to a determination of issues in any judicial proceeding so that such information can be properly considered by a judge or jury in making a decision. Evidence is admissible if it is of such a character that the court is bound to accept it during the trial so that it may be evaluated by the judge or jury. Admissible evidence is the foundation of the deliberation process by which a court or jury decides upon a judgement or verdict. The Federal Rules of Evidence regulate the admissibility of evidence in federal courts. State rules of evidence determine evidence that is admissible in state court proceedings18.

ADMISSIBLE EVIDENCE (noun)

Evidence which the trial judge finds is useful in helping the trier of a fact (a jury if there is a jury, otherwise the judge) and which cannot be objected to on the basis that it is irrelevant, immaterial or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury’s shock at gory details may outweigh that probative value. In criminal cases, the courts tend to be more restrictive on letting the jury hear such details for fear they will result in “undue prejudice”. Thus, the jury may only hear a sanitized version of the facts in prosecutions involving violence.19

ADMISSIBILITY

The quality or state of being allowed to be entered into evidence in a hearing, trial, or other proceeding.20

18 West’s Encyclopaedia of American Law (2009) Admissible, Answers.com Available from:

http://www.answers.com/topic/admissible [Accessed 31/01/2010]

19

Hill, G. and Hill, K (2005) Admissible Evidence. The Free Dictionary [Online] Available from: http://legal-dictionary.thefreedictionary.com/Admisible+evidence. [Accessed 31/01/2010]

20 Black Law Dictionary 1999, 7th

Edition, West Publishing Co., Minnesota p48

http://www.answers.com/topic/admissible

http://legal-dictionary.thefreedictionary.com/Admisible+evidence

http://legal-dictionary.thefreedictionary.com/Admisible+evidence

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“ELECTRONICALLY STORED INFORMATION” (ESI) DEFINED

The Electronic Discover Working Group of the Conference of Chief Justices uses the following definition:

1(A) Electronically Stored Information is any information created, stored, or best utilized with computer technology of any type. It includes but is not limited to data; word-processing documents; spreadsheets; presentation documents; graphics; animations; images; e-mail and instant messages(including attachments); audio, video and audiovisual recordings; voicemail stored on databases; networks; computers and computer systems; servers; archives; backup or disaster recovery systems; discs, CDs, diskettes, drives, tapes, cartridges and other storage media; printers; the Internet; personal digital assistants; handheld wireless devices; cellular telephones; pagers; fax machines; and voicemail systems.

(B) Accessible information is electronically-stored information that is easily retrievable in the ordinary course of business.21

The key point is that ESI covers all forms of electronically store information on a wide variety of media and equipment. It is not limited to email and Instant Messages22 and computer printouts. (additions mine)

From the above definition, two kinds of Electronically Stored Information (ESI) Evidence exist:

(i) Computers-generated records, e.g., log files (ii) Human-generated but computer stored records, e.g., a spreadsheet

POWERS OF NIGERIAN COURTS WITH RESPECT TO ADMISSIBILITY

This is provided for in Section 6 (1), (2), (5) and (6) of Constitution of the Federal Republic of Nigeria 1999 which is reproduced below: 6 (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

21 (Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Approved August

2006)

22

AXS-ONE (2007), A Practical Guide to the Litigation Readiness of Electronically Stored Information (ESI) New Jersey: AXS-ONE page 9

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6 (2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State. 6 (5) This section relates to:- (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (d) the high Court of the Federal Capital Territory, Abuja; (e) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; (f) a Customary Court of Appeal of a State; (j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. 6 (6) The judicial powers vested in accordance with the foregoing provisions of this section -

(a) shall extend, notwithstanding anything to the contrary government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that persons; (b) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; (c) shall not, as from date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 determining any issue or question as to the competence of any authority or person to make any such law.

Additionally Section 186 (1) Evidence Act LFN 2004 which deals with the powers of a judge with respect to admissibility of evidence provides that: 186. (1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved,

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would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant and not otherwise. And Section 140 Evidence Act LFN 2004 makes provision for the burden of proof in relation to the admissibility of evidence. 140. (1) The burden of proving any fact necessary to be proved in order -

(a) to enable a person to adduce evidence of some other fact; or

(b) to prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduced, or to prevent the adduction of, such evidence, respectively. (2) The existence or non existence of facts relating to the admissibility of evidence under this section is to be determined by the court.

DEFINITION OF “DOCUMENT” UNDER THE EVIDENCE ACT

Section 2(1) Evidence Act LFN 2004 defines “document” as follows: In this Act, except as the context otherwise requires:-

"document" includes books, maps, plans, drawings, photographs and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;

DEFINITION OF “DOCUMENT” AS PROPOSED BY THE NIGERIAN LAW

REFORM COMMISSION

The Nigerian Law Reform Commission23 recently reviewed the Evidence Act and came up with a proposal with respect to definition of a document. This proposed amendment is in Section 258(1) of the Draft Evidence Decree 1998. The current definition in Section 2(1) of the Evidence Act LFN 2004 reproduced above was to become Section 258(1) (a).

23Hon. Justice Chinwe F. Iyizoba, Admissibility of Documentary/Electronic Evidence: Issues, Challenges and Options. Available from: “http://nji.gov.ng/index2.php?option=com_docman&task=doc_view&gid=91&itemid=163”*Accessed

22/01/2010]


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Other sub paragraphs are as follows: 258(1)(b) any disc, tape, sound track or other device in which sounds or other

data(not being visual images)are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and

258(1)(c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it.

DEFINITION OF “DOCUMENT” BY BLACK’S LAW DICTIONARY

Black’s Law Dictionary24 defines documents as: something tangible on which words, symbols or marks are recorded; the deeds, agreements, title papers, letters, receipts and other written instruments used to prove a fact.

JUDICIAL DEFINITION OF “DOCUMENT”

In The King v. Daye25, Darling J observed “that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.”

DEFINITION OF “DOCUMENT” IN THE UNITED STATES FEDERAL RULES OF

EVIDENCE – Rule 1001(1)

The US Federal Rules of Evidence defines “document” as: Writings and recordings. – “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. The import of this definition is that under the Federal Rules, documents include electronic evidence.

24

Black’s Law Dictionary 1999, 7th

Edition, West Publishing Co., Minnesota, Page 498 25

(1908) 2 KB 333

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DOCUMENTARY EVIDENCE AND THE EVIDENCE ACT Part V of the Evidence Act LFN 2004 has 54 Sections and deals with “Documentary Evidence”. The relevant sections are: Sections 78 – 90: Affidavit Evidence Sections 91- 92: Admissibility of Documentary Evidence Sections 93 – 99: Primary & Secondary Documentary Evidence Sections 100 – 108: Proof of Execution of Documents Sections 109 – 113: Public & Private Documents Sections 114 – 131: Presumptions as to Documents

ADMISSIBILITY OF DOCUMENTARY EVIDENCE AS TO FACTS-IN-ISSUE

(SECTION 91 EVIDENCE ACT LFN 2004)

Following below is a reproduction of Sections 91 and 92 of the Evidence Act LFN 2004: 91. (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied -

(a) if the maker of the statement either -

(i) had personal knowledge of the matters dealt with by the

statement, or (ii) where the document in question is or forms part of a record

purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) if the maker of the statement is called as witness in the proceedings:

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

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(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence -

(a) notwithstanding that the maker of the statement is available but is not called as a witness;

(b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.

(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.

(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner, and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

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COMMENTS ON SECTION 91

Section 91(1) Evidence Act LFN 2004 provides for two distinct situations:

(i) where the maker of the statement

has personal knowledge of the matters dealt with

and is called as a witness in the proceedings (See Anthony Okafor v. Nwanneka Okpala26 )

(ii) where the maker of the statement made it

in the performance of a duty to record information supplied to him by a person who had personal knowledge of the matters

the document in question is, or forms part of, a continuous record made in the performance of such a duty

and he is called as a witness in the proceedings

Section 91(1) (a)(i) Evidence Act LFN 2004 is straightforward. With Section 91(1) (a)(ii) Evidence Act LFN 2004 some difficulties arise chiefly because of the two conditions given, namely:

(i) The document must form part of a “continuous record” (ii) where the maker of the statement made it

a. in the performance of a duty to record information supplied to him by a person who had personal knowledge of the matters

b. and he is called as a witness in the proceedings Lord Tucker in Thrasyvoulou Loannou v. Papa Christo Foros Demetriou27 handled the issue of a document forming part of a “continuous record”:

The mere existence of a file containing one or more documents of a similar nature dealing with the same or a kindred subject matter does not necessarily make the contents of the file a continuous record within the meaning of the section.

The difficulty inherent in the second condition was solved in Edmonds v. Edmonds28 where it was held that a witness who swore before a Commissioner as to certain facts, supplied the Commissioner with those facts. 26 1995 1 NWLR 749

27

1952 ALL ER 179 28

(1947) P 67

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Also in Barkway v. South Wales Transport Limited,29 Squith L. J said: If a man dictates a letter giving information to the person to whom he is writing it is an abuse of language to say that he is engaged in supplying information to his shorthand typist.

In Section 91(2) Evidence Act LFN 2004 the court has discretion to

(i) Order or allow the admission of a statement mentioned in subsection (1) (ii) Or a certified true copy of it

under certain circumstances. However, the provision of this subsection cannot be employed so as to dispense with the need for a judge to hear the two sides to a dispute. In Peter Ogiogun v. Idukpaye30 it was held that the record of proceedings before a former magistrate is clearly inadmissible under Section 91(2) Evidence Act LFN 2004 because of the provision of Section 91(3) Evidence Act LFN 2004. In Section 91 (2) (b) Evidence Act LFN 2004, if a Court is in doubt as to whether or not the original of a document is in existence, there is no discretion in the Court to admit the copy, which will have to be rejected as no question of undue delay or expense arises. In Bowskill v. Dawson31 the plaintiff’s action was for damages as a result of negligent driving. He made a statement which he signed, and a copy of it was later typed. He died before the trial, and as the original statement could not be found, the typed copy was tendered in evidence but was rejected, as not being admissible under this provision. In Section 91(3) Evidence Act LFN 2004, before a statement can be admitted under Section 91 Evidence Act LFN 2004 it must not have been made:

(i) by “a person interested” (ii) Nor “when proceedings were pending or anticipated”

Section 91(3) Evidence Act LFN 2004 can properly be considered as a proviso to the preceding two sub-sections.

29

(1949) 1 KB 54 30

(1959) WRNLR 81 31

(1954) 1 QB 288

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The ruling In Bowskill v. Dawson32 states that where a person has been cautioned, there can be no doubt whatsoever that he must be taken to know that the matter might end in court. Where a person was not cautioned, there may still be a doubt as to whether the matter will end in court or not. In Robinson v. Stern33 the Court of Appeal held that a statement made by a person interested at a time when a dispute was anticipated was inadmissible and that the word “anticipated” must be construed as including “likely”. “A person interested” is not confined to the maker of a document. It means “any person whatsoever provided that he is interested”. (See Evon v. Noble34) An employee may be a person interested if his skill or competence is involved or his conduct in relation to the events which led to the litigation or when his association with the events is called in question. (See HMS Ltd v. First Bank Plc)35 And with respect to Section 91(3) Evidence Act LFN 2004, in Jarman v. Lambert and Cooke (Contractors) Ltd36, Evershed MR was prepared to accept the view that by “proceedings were anticipated” was meant “proceedings were regarded as likely” or even “proceedings were reasonably probable”. However, the court distinguished the facts of Robinson v. Stern37 from the facts of Jarman v. Lambert and Cooke (Contractors) Ltd38 and held that the form filled and signed by the workman was admissible, for although it was made by a person interested, no proceedings were anticipated involving a dispute as to any fact which the statement might tend to establish, whether by the workman or by anyone else at the time when it was made. With Section 91(4) Evidence Act LFN 2004, difficulties arise with respect to “… or otherwise recognised by him in writing as one for the accuracy of which he is responsible.” The million dollar questions that arise are:

(1) What will amount to a person making a statement if the statement was not written, made, produced signed or initialled by him? And

(2) What will amount to recognition of a statement in writing by a person making it?

32

(1954) 1 QB 288 33

1939 2 KB 260 34 (1949)1KB 222-225

35 (1991) 1 NWLR 290

36 (1951)2 KB 937 (1952) ALL ER 355

37 1939 2 KB 260

38 (1951)2 KB 937; (1952) ALL ER 355

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In Re Powe39 securing the services of another to do the actual typing did not matter provided that the one so securing saw it, checked it and wrote upon it. And, in Paul Ordia v. Piedmont (Nig) Ltd40 although a document was not signed, provided that: (i) an individual assembled its contents (ii) Prepared its contents and (iii) Holds himself responsible for its accuracy, he will be deemed its author.

WEIGHT TO BE ATTACHED TO DOCUMENTARY EVIDENCE (SECTION 92

EVIDENCE ACT)

92. (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. 92. (2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.

COMMENTS ON SECTION 92

DISTINGUISHING BETWEEN ADMISSIBILITY & WEIGHT OF EVIDENCE

This section lists a number of issues that the court should consider when it has to estimate the weight to be attached to admissible evidence. The question of the admissibility of evidence in a trial with a jury is for the judge to decide. Sometimes, there is no clear distinction between admissibility and weight of evidence – i.e., there may be an overlap as seem in R v. Maqsud Ali41. This situation is however rare.

39

(1956) P 70 40

1995 2 NWLR 519 41

(1965) 2 ALL ER 464, 471

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As Shaw J pointed out in R v. Robson42:

it may be difficult, if not impossible, to draw the philosophical or theoretical boundary between matters going to admissibility and matters going to weight and cogency; but it is simple enough to make a practical demarcation and set practical limits to inquiry as to admissibility especially in a criminal case, “if the correct principle is that the prosecution are required to do no more than set up a prima facie case in favour of it”

ILLITERACY – A CIRCUMSTANCE THAT CAN INFLUENCE WEIGHT

Lord Langdale MR in Johnston v. Todd43 observed that the evidence of an illiterate witness is not to be wholly rejected because a part of it is proved to be in error.

ONE AFFIRMATIVE OR SEVERAL NEGATIVE WITNESSES – A CIRCUMSTANCE THAT CAN

INFLUENCE WEIGHT

It has been said in England Tocker v. Axre44 and in Canada Watt v. Watt45 that one affirmative witness outweighs several negative witnesses.

CORROBORATION

The effect of Section 92(2) Evidence Act LFN 2004 is that corroboration must be independent. In effect then, by virtue of Section 92(2) Evidence Act LFN 2004 there can be no self-corroboration. Section 92(2) Evidence Act LFN 2004 is at variance with Section 214 Evidence Act LFN 2004. The effect of Section 214 Evidence Act LFN 2004 is that self-corroboration is ok. (See R v. Lillyman46) If the witness is consistent in his story, this may lend some weight to his story.

42

(1971) 56 Cr. App R 450,456 (1972) 2 ALL ER699, 703 43

(1843) 5 Beau 597; 49 ER 710 44

(1821) 3 PHIIL 539; 161 ER 1408 45

(1909)10 WLR 699 46

(1896) 2 QB 167

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ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE IN NIGERIA

According to Hon. Justice J.O.K. Oyewole in his paper “Cybercrime: Challenges before Judicial Officers” “while there are no express provisions in the Nigerian Evidence Act to guide the Courts, liberalism in the interpretation of some of the existing provisions has ensured admissibility. Trial Courts must accordingly follow the leadership given in this area by the Supreme Court”47. He states that the combined effect of Section 2(1) Evidence Act [LFN 2004] defining “document” and the provisions of Sections 5(a) Evidence Act [LFN 2004] and 74(2) Evidence Act [LFN 2004] is to make electronic documents admissible. However, this “would not absolve the particular party of the need to provide necessary foundational evidence before introducing the evidence in question.” 48 Honourable Justice Chinwe agrees when she observed: “it is not in doubt therefore, that the Evidence Act [LFN 2004] as it is, never contemplated the admissibility of electronic evidence. This underscores the need for the amendment of our Evidence Act…”49 Professor Taiwo Osipitan in his critique of the judgement of Honourable Justice A.R. Mohammed in EFCC v. Fani-Kayode50 observed: “admittedly, the Evidence Act [LFN 2004] makes no specific mention of computerised statement of account, documents produced through typewriters and other mechanical and electronic devices.” 51 He however stated that “By virtue of Section 2(1 )of the Evidence Act *LFN 2004], documents are not restricted to pen and paper writings. The scope of document is wide enough to accommodate computerised statements of account and writings produced through electronic/mechanical devices. The point should also be made that there is no provision in the Act, which prohibits the admissibility of computerised statement of account. It follows that what is not prohibited by the Act 47

Hon. Justice J.O.K. Oyewole, November 2009, “Cybercrime: Challenges before Judicial Officers”, Paper

presented at The 2009 All Nigeria Judges Conference, p 3 48

Hon. Justice J.O.K. Oyewole, November 2009, “Cybercrime: Challenges before Judicial Officers”, Paper presented at The 2009 All Nigeria Judges Conference, p 3


22/01/2010]

50 Thisday March 27, 2009 p 6

51Professor Osipitan, April 2009, Available from:

http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATEMENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf [Accessed: 23/01/2010]


http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATEMENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf


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is admissible in evidence, especially where such unprohibited evidence is admissible at common law and in other jurisdictions.”52 Professor Osipitan continued “It suffices to state that the fact that the Evidence Act does not contain express provision on the admissibility of computer-generated evidence does not justify the outright rejection of computerised statements of account in evidence, especially when there are no provisions in the Act which prohibits admissibility of computerised statements of account.” 53 He then went on to refer to Esso West Africa v. Oyegbola,54 Ayeabosi v. R.T. Briscoe Ltd,55 Trade Bank Plc v. Chami56 all of which were in favour of the admissibility of electronically stored information (ESI) evidence and concluded:

The above decisions/pronouncements are, by virtue of the doctrine of stare decisis, binding on his Lordship, Honourable Justice A.R Mohammed. … It is gratifying that the decision to exclude the evidence is an interlocutory decision…. It is trite that a wrongly excluded evidence can be admitted at the stage of final address…. Admittedly, e-specific evidence law is desirable. However the existence of e-specific legislation/provisions is not a necessary condition for the admissibility of computerised statements of account and other electronically generated evidence in Nigeria.57

52

Professor Osipitan, April 2009, Available from: http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATEMENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf [Accessed: 23/01/2010] 53

Professor Osipitan, April 2009, Available from: http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATEMENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf [Accessed: 23/01/2010] 54

(1969) NMLR 194; NSCC 354-355 55

(1987) 3 NWLR (Pt. 57-59) 108 56

(2003) 13 NWLR (Pt. 836) 16 57

Professor Osipitan, April 2009, Available from: http://www.nigerianlawguru.com/articles/practice%20and%20procedure/WHY%20COMPUTERISED%20STATEMENT%20OF%20ACCOUNT%20IS%20ADMISSIBLE%20AS%20EVIDENCE%20IN%20NIGERIAN%20COURTS.pdf [Accessed: 23/01/2010]







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CONFLICTING PRONOUNCEMENTS OF NIGERIAN COURTS ON THE

“PROBATIVE VALUE” OF ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE

Under this heading, a total of eight (8) cases cutting across three tiers of the Federal Judicial System with a bearing on the admissibility of electronically stored information (ESI) evidence will be considered in this work. The cases are:

(1) Esso West Africa Inc v Oyegbola 1969 NMLR 194; NSCC 354-355 (Supreme Court) The law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer. In modern times reproduction or inscriptions on ledgers or other documents by mechanical process are common place and section 37 cannot therefore apply only to “books of account…so bound and the pages… not easily replaced. We think the ledger cards in this case had been wrongly rejected and they should have been admitted in evidence. We therefore, so rule.

(2) Yesufu v ACB (1976) ANLP (Pt. 1) 328 (Court of Appeal) Computer print-outs not admissible

(3) Elizabeth Anyaebosi v R T Brisco Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84

(Supreme Court) Computer print-out admissible as secondary evidence

(4) Unity Life and Insurance Co LTD v IBWA Ltd (2001) 7 NWLR (Pt.713) 610 (Supreme Court) Computer print-out admissible as secondary evidence

(5) Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145) 661 (Court of Appeal) The admission in evidence by the court of 1st instance of computer print-out as secondary evidence of entries of a banker’s book was wrong because, among other things, the relevant provision of Section 97 of the Evidence Act do not contemplate information stored “other than in a book”

(6) Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158 (Court of Appeal) This Section of the Evidence Act (supra) does not require the production of ‘books of account’ but makes entries in such books relevant for admissibility. Exhibit 4 is a mere entry in the computer or book of account. Although the law does not talk of “computer” and “computer print-outs” it is not….Oblivious to

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or ignorant of modern business world and the technological advancement of the modern jet age. As far back as 1969, the Supreme Court in the case of Esso West Africa Inc. v. Oyegbola (1969) NMLR 194, 198 envisaged the need to extend the horizon of the section to include or cover computer which was virtually not in existence or at a very rudimentary stage at that time… On this authority the provisions of S.38 covers, in my respectful opinion, also electronic process such as computer and the computer print-outs comprised in Exhibit 4 are admissible. (Pages 216, 217, Paragraphs E, C)

(7) UBA v SAFDU (2004) 3 NWLR (Pt.861) 516 (Court of Appeal) Computer print-outs of statement of account are only admissible subject to the fulfilment of the condition listed in Section 97(2)(e) Evidence Act LFN 2004.

(8) EFCC V FANI-KAYODE - ThisDay March 27, 2009 p 6 (Federal High Court)

Computer print-out of statement of account held inadmissible under Section 97(1)(h) and 97(2)(e) Evidence Act LFN 2004 , even if relevant to the proceedings, since the issue in contention is that the document, i.e., the statement of account is a computer print-out, therefore, certification of the statement of account was inapplicable or irrelevant

The ruling in each of four of (4) of the eight (8) cases is in favour of the admissibility of electronically stored evidence under the current Evidence Act LFN 2004, while the ruling in each of the remaining four (4) of the cases is against Three (3) of the cases in favour are from the Supreme Court, one (1) from the Court of Appeal, while three (3) not in favour are also from the Court of Appeal and the final case not in favour is from the Federal High Court.

AMENDMENTS TO THE EVIDENCE ACT

According to Senator Akinyede, sponsor of the Bill for an Act to Amend the Evidence Act CAP E14 Laws of the Federation of Nigeria 2004, “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”58.

58 Ngex (2009) Senate to Amend Evidence Act to allow Electronic and computer Generated Materials as

evidence Ngex [Online] Available from : http://www.ngex.com/news/public/newsinfo.php?nid=8329 [Accessed 21/01/2010]

http://www.ngex.com/news/public/newsinfo.php?nid=8329

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None of the three minor amendments treated the issue of admissibility of electronically stored information (ESI) evidence.59 Considering that the Nigerian Evidence Act is senior to the American Federal Rules of Evidence (FRE) by 30 years and that between 1975 and date there have been several major amendments to the FRE while there have been just three minor amendments to the Evidence Act shows that the Evidence Act, in its current state, leaves much to be desired.60 The purpose of this work is to highlight/pinpoint areas in which the Evidence Act is very much in need of amendments to accommodate the admissibility of electronically stored information (ESI) evidence. This paper will consider the weaknesses of the Evidence Act under the following headings:

1. The Best Evidence Rule and ESI 2. The Hearsay Rule and ESI 3. Authentication of ESI 4. Conclusion and Recommendations

In doing this, the researcher is guided by the words of Allison Coleman (2000):

“…in the world of high technology it is unduly insular to consider only English Law, for computers and modern telecommunications links allow information to be moved around the world and across jurisdictional boundaries in but the blink of an eye. Lawyers and information managers… need to be familiar with terms and developments in other countries… for the law is never static and new concepts introduced into other legal systems often have an impact on our own.”61

59 Miller,C. (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow Admissibility

of Electronic Evidence. Evidence Prof Blog [Online] Available: http://typepad.com/services/trackback/6a00d8341bfae553ef0120a5a47e7970b.com [Accessed 21/01/2010]

56 Miller,C. (2009) (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow

Admissibility of Electronic Evidence. EvidenceProf Blog [Online] Available: http://typepad.com/services/trackback/6a00d8341bfae553ef0120a5a47e7970b.com [Accessed 21/01/2010]

61 Reed, C and Davies, L. (2000) Computer Law 4

th Edition, London BlackStone Press Ltd p 245

http://typepad.com/services/trackback/6a00d8341bfae553ef0120a5a47e7970b.com


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CHAPTER 2: THE BEST EVIDENCE RULE AND ELECTRONICALLY STORED

INFORMATION (ESI) EVIDENCE

CHAPTER SUMMARY

This chapter will define the best evidence rule and explain its significance. Next, the

rule and its application in Nigeria will follow.

A consideration of whether or not the best evidence rule is compatible with ESI

evidence; and the relevance of the best evidence rule today will be next in line.

The application of the best evidence rule in the United States, the United Kingdom as

it relates to ESI such as computer printouts and metadata will come next.

The chapter will then conclude with a listing of proposed modifications to the best

evidence rule in Nigeria.

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THE BEST EVIDENCE RULE DEFINED

There are several definitions of the best evidence rule and to present a holistic view, here are a few of them from a variety of sources:

According to Wikipedia, the Free Encyclopaedia:

The best evidence rule is a common law rule of evidence which can be traced back at least as far as the 18th century. In Omychund v. Barker62, Lord Harwicke stated that no evidence was admissible unless it was “the best that the nature of the case will allow”. The general rule is that secondary evidence, such as a copy or facsimile, will not be admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability. 63

The EnCase Legal Journal defines the best evidence rule in this way:

“The Best Evidence Rule is a doctrine of evidentiary law in the United States, Canada and certain other countries that essentially requires that absent some exceptions, the original of a writing must be admitted into evidence in order to prove its contents”64

In Scheindlin, SA and Capra, DJ (2009), we are told that the:

Best evidence rule states that when a party is trying to prove the contents of a writing, recording, or photograph, the proponent must introduce the original.

.… But the best evidence rule has two important exceptions:

(1) Duplicates are acceptable unless the opponent raises a genuine question as to the authenticity of the original or the use of the duplicate in lieu of the original is unfair for some other reason; and

(2) The proponent can forego the original – or a duplicate – if there is a good reason for not having it.65

THE RATIONALE BEHIND THE BEST EVIDENCE RULE

Wikipedia, the Free Encyclopaedia throws some light on the motivation for this rule:

62

(1745) 1 Atk, 21,49,26, ER 15, 33 63

Wikipedia (2009) Best Evidence Rule, Wikipedia [online] Available from: http://en.wikipedia.org/wiki/Best/best evidence rule [Accessed 1/02/2010] 64

Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p48 65

Scheindlin, S. and Capra, D. (2009). Electronic Discovery and Digital Evidence: Cases and Materials - Minnesota: West Publishing Co p 522/3

http://en.wikipedia.org/wiki/Best/best%20evidence%20rule


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The rationale for the best evidence rule can be understood from the context in which it arose: in the eighteenth century a copy was usually made by hand by a clerk (or even a litigant). The best evidence was predicated on the assumption that, if the original was not produced, there was a significant chance of error or fraud in relying on such a copy. 66

On the import of this rule, Aguda states:

This rule was made use of in excluding copies or counterparts of agreements and in excluding oral evidence of articles in dispute. In the former case the original agreement was required to be produced and in the later case, the article itself must be produced.67

THE BEST EVIDENCE RULE IN THE EVIDENCE ACT

Section 77 Evidence Act LFN 2004 provides:

77. Oral evidence must, in all cases whatever, be direct -

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact: (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact; (c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that -

(i) the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable,

66


Aguda, T. (1999) Aguda: The Law of Evidence 4th

Edition, Ibadan, Spectrum Books Ltd p11


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(ii) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute and in the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the court shall attend and make an inspection of the subject matter only, evidence, if any, of what transpired there being given in court afterwards; in either case the accused, if any, shall be present.

According to Nwadialo, F (1981), “Although Section 77 deals with oral evidence, its underlying principles govern documentary evidence too.” 68

Hearsay evidence applies also to documents. Where it is required to establish the truth of the statements in a document, the maker must be called as witness unless the document is one of the types exempted from the operation of the hearsay evidence rule.

THE BEST EVIDENCE RULE AT PLAY IN A NIGERIAN COURT

In Jacob v. Attorney General Akwa Ibom State69, the plaintiff sought to tender in evidence as an exhibit a photocopy of a document which he referred to as a duplicate copy. He did not serve on the defendant notice to produce the original. The Court of Appeal (Calabar Division) observed:

…In the instant case, the bill sought to be admitted in evidence at the trial is a photocopy. Being a photocopy, it is secondary evidence of the original document. There was no evidence at the trial that notice to produce the original document was given to the respondent, or to her Counsel before the appellant’s Counsel sought to tender the photocopy of the bill for admission in evidence…

68

Nwadialo, F (1981) Modern Nigeria Law of Evidence. (1981) Benin City, Nigeria, Ethiope & Publishing Co. (p.

98)

69 (2002) 8 FWLR (Pt.86) 57; (2002) 7 NWLR (Part 765) 18

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The combined effect of Section 94(1) to (4) Evidence Act LFN 2004 is that a photocopy, not being “primary evidence”, cannot constitute an original.

When technology has advanced to the point that some copies are as good if not better than the original, and a layman sees no distinction between a photocopy and an original, but lawyers do, there might be a problem.

Paul, G. L. (2008) put it this way: “Lawyers have a special role in society. When you really want to know what happened – in a dispute in business, or in a marriage, or in a government scandal – you call the lawyers, and they pore over information, including the writings involved…. Lawyers must understand the workings of informational records better than any other social group. If not, they lose their effectiveness – their status and power in society. ”70

IS THE BEST EVIDENCE RULE COMPATIBLE WITH ELECTRONICALLY

STORED INFORMATION (ESI) EVIDENCE

One source on the best evidence rule says an “original document is a document that was “the first one prepared, signed, recorded or a negative of a picture”.71

About the current Nigerian legislation, a journal of a notable law firm observed:

It is hardly practicable to tender electronic documents in their original versions as stored in a computer memory. This invariably means that the printed versions of computer created files that can be tendered in courts are copies or even secondary copies of the original version.72

This is affirmed by Bamodu:

Electronic documents do not really have an ‘original’ in a meaningful sense being invariably in the visually represented for, copies or even copies of copies of the initial data output. 73

70

Paul, GL (2008) Foundations of Digital Evidence, Chicago: American Bar Association p16 71 Associated Content (2010) The Best Evidence Rule: What is it? Associated Content [online]. Available from:

http://www.associatedcontent.com/article/227119/the_best_evidence_rule_what_is_it.html?cat=17

[Accessed 01/02/2010]

72 Paul Usoro & Co (2007) Electronic Evidence and the Nigerian Courts PUC Journal June p3

73 Bamodu, “Information Communications Technologies E –Commerce: Challenges , Opportunities for the

Nigerian Legal System and the Judiciary, 2004(2) The Journal of Information. Law and Technology (JILT) [Online] http://www2.warwick.ac.uk/fac/soc/law/elj/jih/2004_2/bamodu/

http://www.associatedcontent.com/article/227119/the_best_evidence_rule_what_is_it.html?cat=17

http://www2.warwick.ac.uk/fac/soc/law/elj/jih/2004_2/bamodu/

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Bainbridge (2000) is of the opinion that the Best Evidence Rule is dated:

The best evidence rule requires that only an original document can be put in evidence. This rule has all but disappeared but remnants of it still remain.

The courts have recognised that a rigid adherence to the best evidence rule is inappropriate in the context of the accuracy with which copies of originals may now be made. Lord Justice Lloyd said in R v Governor of Pentonville Prison, ex parte Osman.74

“We accept that it [the best evidence rule] served as an important purpose in the days of parchment and quill pens. But, since the invention of carbon paper, and, still more, the photocopier and telefacsimile machine, that purpose has largely gone.”

A general exclusion on copies of original documents is no longer fitting.75

It would seem as far as ESI is concerned, “original” in the sense that led to the rule is no more. One wonders then, its continued retention in Nigerian legislation. Interestingly, there is an attempt in the National Assembly to amend the law as it relates to the best evidence rule.

Please see the sub-heading: “Proposed modifications to the Best Evidence Rule in Nigeria” in this chapter.

The proposed amendment should be compared with the recommendations of the California Law Revision Commission. It is submitted that Nigeria’s interests would be better served by abolishing the rule.

IS THE BEST EVIDENCE RULE RELEVANT TODAY?

On the relevance of the best evidence rule in today’s world, Wikipedia, the Free Encyclopaedia makes this salient point:

In the age of digital facsimiles, etc. the rule is more difficult to justify. The likelihood of actual error (as opposed to mere illegibility) through copying is slight. The balance of convenience favours avoiding needless effort and delays where there is no dispute about the fairness and adequacy of a digital facsimile. Further it is by no means clear what the ‘original’ of an electronic

74

(1989) 3 All ER 701 75

Bainbridge, D. (2000) Introduction to Computer Law. 4th

Edition, London: Longman p269

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communication such as an e-mail actually is: as a great many electronic ‘copies’ of a message might come into existence from creation to receipt. 76

In the same vein, Blackstone’s Criminal Practice on the Best Evidence rule states that:

The best evidence rule, which was used in the 18th and early 19th centuries as an exclusionary principle, i.e. to prevent the admission of certain evidence where better evidence was available, is now all but defunct. 77

It is equally interesting to note Lord Denning’s MR opinion on the best evidence rule as presented in Garton v Hunter:

The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available on one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. 78

The California Law Revision Commission recommended that:

The Best Evidence Rule (Evidence Code Section 1500) requires that the content of a writing be proven by introducing the original.

This recommendation calls for repeal of the Best Evidence Rule and its exceptions, and adoption of a new rule known as the “Secondary Evidence Rule.” The new rule would make secondary evidence, (other than oral testimony) admissible to prove the content of a writing, but require courts to exclude such evidence if (1) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion, or (2) admission of the secondary evidence would be unfair. 79

THE BEST EVIDENCE RULE UNDER THE US FEDERAL RULES OF EVIDENCE

(FRE 1002)

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. FRE Rule 1002

76



(1969) 1 ALL ER 451 79

Best Evidence Rule, 26, Cal. L. Revision Comm’n Reports 369(1996)



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Although frequently referred to as the best evidence rule, as Judge Grimm stated in his ruling in Lorraine v Markel80: ‘The rule is more accurately referred to as the “Original Writing Rule” because it does not mandate introduction of the “best” evidence to prove the contents of a writing, recording or photograph, but merely requires such proof by an “original,” duplicate” or, in certain instances, by “secondary evidence”– any evidence that is something other than an original or duplicate (such as testimony, or a draft of a writing to prove the final version, if no original or duplicate is available.” Commenting on this rule, Shamos, M says:

A duplicate of the original is ordinarily permitted, but no oral testimony or other documents referring to the original. The “best evidence” rule is very limited. It does not mean that the best evidence rule is very limited. It does not mean that the best evidence must be used to prove each element of the case. It also has exceptions e.g. if the original no longer exists.81

THE COMPUTER “BEST EVIDENCE” [RULE FRE 1001(3)] IN THE US

According to The EnCase Legal Journal, “with electronic evidence, the concept of an “original” is difficult to define”.82 This led to the promulgation of what may be called the Computer “Best Evidence” Rule in the US, FRE 1001(3):

An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original of a photograph includes the negative or any print there from. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original”.

Please compare Sections 4, 232(1), 232(2), 234(1) and 234(2) of the Evidence Act (Amendment) Bill 2009.

The EnCase Legal Journal explains that “under the rule and similar rules in state jurisdictions, multiple or even an infinite number of copies of electronic files may each constitute an original.” 83

80

[241 F.R.D at 538 (D. Md. 2007)] 81

Shamos, M I (2008) Computer Evidence Lecture Notes distributed at the Institute for Software Research, School of Computer Science, Carnegie Mellon University in Fall 2008 82

Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p78

83


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The Treatise Overly on Electronic Evidence in California (1999)§ 9.02;9-3, comments on California Evidence Code Section 255, an identical statute to Rule 1001(3), noting:

The approach adopted in Evidence Code Section 255 allows for the possibility that multiple or, even, an infinite number of originals may exist. Each time an electronic document is printed, a new “original” is created.84

According to Stephenson, P (2004) although the original in the sense of the common law rule “is ordinarily required”, courtesy of FRE 1001(3) in relation to Digital evidence, it need not be tendered in evidence.85

Kerr, O (2001) states “According to the Advisory Committee Notes that accompanied this rule when it was first proposed, this standard was adopted for reasons of practicality… practicality and usage confer the status of original upon any computer printout.”86

WHAT THEN IS AN ACCURATE REFLECTION IN THE SENSE OF RULE

1001(3)?

While a copy of a physical document made through printing, photostating or photographing might be “shown to reflect the data accurately”, a copy of an electronic file will not “unless Windows-supported forensic tools or other viewers are used to non-invasively create an accurate visual output of the recovered data, without changing any of the data.”87

Should it be necessary for the ESI to change format from electronic to the physical realm, “as long as the printout is an accurate reflection of the original data, it is irrelevant what the operating system does to the file during the printing process”.88

From the foregoing, “the context of the computer data is often as important as the data itself…Obviously, if the original data is actually compromised, the visual output

84


85

Stephenson, P (2004) Ensuring the Reliability and Admissibility of Digital Evidence, Eastern Michigan University [online]

Available from: http://people.emich.edu/pstephen/my_presentations/Ensuring%20the%20Reliability%20and%20Admissibility%20of%20Digital%20Evidence%20-%201%20hr.ppt [Accessed 16/11/2009]

86

Kerr, 0. (2001) Computer Records and The Federal Rules of Evidence. United States Attorneys’ USA Bulletin, 49(2) 87


88


http://people.emich.edu/pstephen/my_presentations/Ensuring%20the%20Reliability%20and%20Admissibility%20of%20Digital%20Evidence%20-%201%20hr.ppt


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will not be accurate. It is mandatory that the original data remain unchanged, but whether that data is compressed, encrypted or converted to a different file format in its stored state is immaterial as long as the data itself is not compromised. … A careful reading of Rule 1001(3) proves that Congress did not place probative value “on the stored state of” the ESI evidence but on the “accuracy of the visual output of computer data (printout or otherwise) once the image or files are mounted…This is one of the reasons the MD5 hash and verification processes are so important. Even though the file format of the data in question may change, the integrity of that data must remain intact.89

The import of the above analysis is clear from the rulings in the following cases:

In the case In re Sept 11th Liab, Ins, Coverage cases,90 filed by numerous victims of the September 11, 2001 attacks, the court imposed $1,250,000 in sanctions for e-discovery violations relating to the non-production of an essential document. Specifically, the court sanctioned the defendant for deleting the electronic version of an essential document while possessing the paper version for over three years before producing it. (emphasis mine) 91

In this class action claim, In re NFL, Inc.Sec. Litig92., the plaintiffs moved for sanctions against the defendant alleging that the defendant deliberately destroyed and allowed spoliation of e-mails and other ESI. The court held that the defendant’s duty to preserve started when litigation was foreseen and found the defendant grossly negligent in its failure to preserve relevant documents. The court granted the plaintiffs’ motion for an adverse inference instruction and ordered the defendant to pay attorneys’ fees and costs. (emphasis mine) 93

It is therefore clear that once the electronic version of an essential document, as opposed to the computer print-out is deleted, unless the deleted document is forensically recovered, there is no way it could be proved, as required by Rule 1001(3) that the “printout or other output readable by sight” could be “shown to reflect the data accurately”.

However, since Congress realized that it was necessary to “protect organisations from sanctions for the destruction of data resulting from routine good faith operation of an information management system”, it enacted the ‘safe harbour’

89


90

[ 2007 WL 1739666 (S.D.N.Y. June 18, 2007)] 91

Shogren,J. and Lange,M (2008) THE FRCP amendments- Here’s how we did:2007 Year in Review, Law Technology, January 2008 p13/18 92

[2007 WL 241344 (S.D.N.Y. Jan 30, 2007)] 93

Shogren,J. and Lange,M (2008) THE FRCP amendments- Here’s how we did:2007 Year in Review, Law Technology, January 2008 p13/18

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principle in Rule 37(e) of FRCP. Although this rule places the burden on the defendant to prove that there was no malice aforethought in its actions and that its information technology infrastructure was being operated reasonably.94

For example, the court in Doe v. Norwald Community College95, , refused to allow the defendant to claim the protections of Rule 37(e) because it failed to suspend its deletion policy upon notice of litigation. Another court refused to grant protection in In re Krause96, since the hard drive wiping was not discontinued once the duty to preserve attached. The court in Oklahoma ex. Rel. Edmonsson v. Tyson Foods, Inc.97, went as far as to warn the parties to be “very cautious in relying upon any ‘safe harbor’ doctrine as described in new Rule 37(e). (emphasis mine)98

WHAT THEN IS AN “ACCURATE REFLECTION” IN THE SENSE OF RULE

1001(3)?

In Lorraine v. Markel 200799 it was held by Majistrate Judge Paul W. Grimm that “under Rule 1003, duplicates can be admitted into evidence unless there are issues of authenticity of the original. This is of particular concern with electronically stored evidence, as it is often difficult to share or make an exhibit if it is displayed on a screen.” 100

THE CIVIL EVIDENCE ACT 1995 AND THE BEST EVIDENCE RULE

Section 8 Civil Evidence Act 1995 states: 8. (1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved –

(a) by the production of that document, or (b) whether or not that document is still in existence, by the production of

a copy of that document or of the material part of it, authenticated in such manner as the court may approve.

94


[2007 WL 2066497 (D.Conn. July 16, 2007)] 96

[367 B.R. 740 (Bktrcy.D.Kan. June 4, 2007)] 97

[2007 WL 1498973 (N.D. Okla. May 17, 2007)] 98


[US Dist. LEXIS 33020 (D. Md. May 4, 2007)] 100

LexisNexis [2007] Electronic Evidence 101, LexisNexis [online]. Available from: http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf [Accessed 04/02/2010]

http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf

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(2) It is immaterial for this purpose how many removes there are between a copy and the original.

Thus the UK rule in civil matters makes no distinction between copies and originals. The effect of the above is that in civil proceedings, there is no original or duplicate. No party is under obligation to produce an original in the sense of “Best Evidence Rule” and an “nth generation copy”101 is admissible as evidence.

THE BEST EVIDENCE WITH RESPECT TO ELECTRONICALLY STORED

INFORMATION NEED NOT BE A COMPUTER PRINT-OUT – COVAD V

REVONET AS A CASE STUDY

In Covad v Revonet102, Covad Communications Company (“Covad”), i.e., the Plaintiff brought this action against the defendant Revonet, Inc. (“Revonet”) alleging that Revonet misappropriated and converted confidential, proprietary and trade secret information – namely, sales leads generated by or for Covad – and breached its contract with Revonet. Covad served its First Set of Requests for Production of Documents on April 27, 2007. Revonet responded on June 15, 2007 with a limited number of hard copy documents and represented that “[n]ot all documents have been obtained as Revonet has retained the assistance of an outside consultant to assist in collecting electronic documents ... other responsive documents will be produced as soon as they become available. On August 4, 2008, Revonet advised Covad that it had additional responsive documents available for inspection and copying. In an August 20, 2008 conference call, Revonet stated that it would make the 35,000 pages of e-mails that are responsive to Covad's request available in hard copy at Revonet's office for inspection and copying…. Covad took issue with Revonet's offer to produce the documents in hard copy as hard copy is not the documents' native format. A few weeks later, on September 3, 2008, Revonet offered to make the e-mails available in electronic format as TIFF files, but only on condition that Covad agree to pay for the fees incurred by having one of Revonet's legal assistants delete privileged or otherwise non-responsive documents from the electronic production set.

101

Reed, C and Davies, L. (2000) Computer Law. 4th

Edition, London: Black Store Press Ltd p 306 102

Covad Communications Co v Revonet, Inc [2008 WL 5377698 (D.D.C. Dec 24, 2008)]

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In other words, Revonet will not produce the e-mails as they were originally created, i.e., in their “native format” as that important term is defined … by The Sedona Conference Glossary. Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party may designate the form in which the electronically stored information should be produced, and (2) if the request does not specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form …the parties' view of the preliminary inquiry here is whether Covad designated the form in which the documents should be produced….Rule 26(f), as amended, specifically requires the parties to discuss the form that production of electronically stored information should take. ….This controversy predates that provision, and underscores its importance….It does not appear that Covad and Revonet ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others' behavior: Covad expecting its documents in electronic form because Revonet hired a company to collect electronically stored information, and Revonet assuming that they should produce 35,000 pages of e-mails in hard copy because Covad produced its documents in that format. As there is no agreement, the parties invite me turn to to the language of the requests themselves to determine whether Revonet can produce the e-mails other than in their native format. ….More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content…Therefore, though Covad’s instruction is hopelessly imprecise and Revonet could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that Revonet, in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that Revonet operates in this manner, and no suggestion that such a practice would be anything but incredible. Therefore, even though I can't say I know what Covad has asked for, I can say what they have not asked for, and that is what they got. …A much more fruitful use of the broad powers I unquestionably have to supervise discovery is to focus on the quickest and cheapest solution to the problem presented. I will assume that the e-mails at issue exist in what I have called their native format and can be copied onto a CD with a couple of keystrokes. Obviously, printing them or converting them to TIFF files probably (and ironically) costs more so Revonet is hard pressed to claim that producing them now in their native format is unfairly burdensome…. Moreover, by converting the data from its native format to TIFF and producing it in hard copy Revonet ran the risk of what has now come to

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pass-that it would nevertheless have to produce the data in its native format. ….But, there is authority in at least 2000 that indicated that a party could be required to produce data in an electronic format even though it had already produced it in hard copy.….Revonet's producing the e-mails only in hard copy played with fire.… With justification, Revonet points out that Covad produced its data in hard copy and accepted the first delivery from Revonet in hard copy without protest…. Since both parties went through the same stop sign, it appears to me that they both should pay for the crash…I will require them to share the cost of the paralegal removing privileged e-mails, as I have described it, to a cost of no greater than $4,000.00, i.e., $2,000.00 each. I expect Revonet to keep a careful record of the time spent and to alert me if there is any risk that the cost will exceed $4,000.00. At that point (which I hope will not be reached) I will ask Revonet to estimate what it will cost to finish the job and seek the views of counsel as how to cover it.….This whole controversy could have been eliminated had Covad asked for the data in native format in the first place or had Revonet asked Covad in what format it wanted the data before it presumed that it was not native.

COMMENTS

Imagine having to read 35,000 pages of email in order to prepare for a case. When the technology exists to help one find the smoking gun in ESI evidence without all that trouble! However, given the emphasis on computer printout by the definition of “original” in Section 4 of the Evidence Act (Amendment) Bill 2009 and the wordings of Section 234 of the same bill, the unfortunate scenario in the above case will sooner or later raise its ugly head in litigation in Nigeria. This scenario can be avoided if proposed law can be amended to permit the parties to decide the form of production as obtains under the American system. In that regard, Rule 34 of the Federal Rules of Civil Procedure should be most helpful since they provide that the requesting party can specify the form in which the ESI should be produced, and if that were not done, then that the ESI should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form.103

103

Taylor, M (2006) CPR r31, Relevancy & ESI, IT LAW TODAY 14 (2) p 5. In this article, the author, a legal consultant at electronic and paper-based evidence services provider Kroll Ontrack observed that “sophisticated technology exists to enable legal teams to filter electronic documents for relevance and significantly reduce their document collection to a more manageable review set.

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COMPUTER PRINTOUTS MAY NOT BE BEST EVIDENCE

According to Sommer, P (1997),

…a computer is not necessarily “just like” a filing cabinet and as a result computer “documents” may not be “just like” the paper equivalent. Again, it is not necessarily the case that computer errors are nearly always manifest in that the result is either no read-out or print-out of any kind or gross nonsense. Depending on circumstances, a computer print-out can look plausibly correct but nevertheless be misleading or be misinterpreted. Increasingly too, the courts are being presented with configuration, logging and other system files which would not normally be viewed by the ordinary computer user-indeed such a user may not even know of their existence – but which investigators and prosecutors are tendering as evidence of an accused’s activities or intentions.(emphasis mine) 104

Hence Rule 1001(3) in the United States, made “accurate reflection” an issue while the Section 8 (1) (b) of the UK Civil Evidence Act 1995 spoke of “the production of a copy of that document or a material part of it, authenticated in such manner as the court may approve.”

METADATA AND THE BEST EVIDENCE RULE AKA “COMPUTER PRINT-OUTS

ARE DEFINITELY NOT BEST EVIDENCE”

The following quotations have been reproduced in support of the contention that computer print-outs are not necessarily always best evidence in the sense that prompted the creation of the Best Evidence Rule in the first place. Noted and notable Judge Shira Scheindlin asked and answered the following questions:

What is metadata in the first place? Must it always be produced? “It’s the electronic equivalent of DNA, ballistics and fingerprint evidence, with a comparable power to exonerate and incriminate. Metadata sheds light on the context, authenticity, reliability and dissemination of electronic evidence, as well as providing clues to human behaviour. All sorts of metadata can be found in many locations. Some is crucial evidence; some is digital clutter. But because every active file stored on a computer has some associated metadata, it’s never a question of whether there’s metadata, but what kinds of metadata exist, where it resides and whether its potential relevance

104

Sommer, P [1997] Digital Footprints: Assessing Computer Evidence PMsommer.com [online] Available from: http://www.pmsommer.com/CrimLR01.PDF [Accessed 02/02/2010]

http://www.pmsommer.com/CrimLR01.PDF

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demands preservation and production.” See Craig Ball, “I Never Metadata I Didn’t Like” (January 2006) (unpublished manuscript, on file with author). See also Williams v. Sprint105, (sanctioning a party for “scrubbing” the metadata in a document production, finding that the producing party should have known that the metadata in that particular case was relevant).106

The following excerpt is presented because it summarizes the case Judge Scheindlin refers to above. This excerpt treats the triad of metadata, Rule 34 and ESI:

Is Metadata within the scope of Rule 34? Williams v. Sprint/United Management Co. is an employment class action suit alleging age discrimination in layoffs. The defendant produced Excel spreadsheets showing reduction-in-force calculations in a static image format, which eliminated the mathematical formulae behind the spreadsheets, text that exceeded cell size, and metadata. Referring to The Sedona Principles as well as proposed Rule 34(b), the judge determined that the defendant should have preserved and produced the spreadsheets “as they are kept in the ordinary course of business” – that is, in native format – or taken other measures to preserve and produce non-apparent information contained within the electronic files, as it was reasonable to assume that the calculations, text, and metadata would be relevant and material to the claims raised in the lawsuit.107

The United States DOJ Guidelines on Searching and Seizing Computers states that “an accurate printout of computer data always satisfies the best evidence rule.”108 The EnCase Legal Journal in discussing Armstrong v Executive Office of the President noted that ‘the court correctly ruled that a “hard copy” paper printout of an electronic document would not “necessarily include all the information held in the computer memory as part of the electronic document” and that the court further noted that without the retention of a complete digital copy of an electronic document such as an e-mail message, “essential transmittal relevant to a fuller understanding of the context and import of an electronic communication will simply vanish.” (emphasis mine)109

105

[230 F.R.D. 640 (D. Kan. 2005)] 106

Judge Shira A. Sheindlin, S.D.N.Y FAQ’s of E-Discovery Federal Judges Association Newsletter November 29, 2006 [online] Available from: http://www.fjc.gov/public/pdf.nsf/lookup/FAQEDisc.pdf/$file/FAQEDisc.pdf [Accessed 02/01/2009] 107

4 Nw.J.of Tech & INtell. Prop 171 at http://law.northwestern.edu/journals/njtip/v4/n2/3 108

United States DOJ Guidelines on Searching and Seizing Computers, Section V.D.I citing Doe v. United States [805 F.Supp. 1513, 1517 (D.Hawaii.1992)] 109

Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p5 0

http://www.fjc.gov/public/pdf.nsf/lookup/FAQEDisc.pdf/$file/FAQEDisc.pdf

http://law.northwestern.edu/journals/njtip/v4/n2/3

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This might well explain Krause, J (2008)’s comments below: Experts say the best way to avoid problems is to always ask for the original, electronic version of a file, or to at least make sure that the original is available for study if any authenticity questions arise… Experts also say litigants need to make sure they have a process in place for collecting information so that if authenticity is challenged in court, they can quickly demonstrate their good-faith efforts to protect the integrity of the data.110

Thus in Lorraine v. Markel111, Magistrate Judge Paul W. Grimm held that in the case of ESI, if metadata is at issue, TIFFs or PDFs might not be considered duplicates.112

ONE TOOL FOR PROVING THAT ELECTRONICALLY STORED INFORMATION

(ESI) EVIDENCE IS AN ACCURATE REFLECTION

That tool for establishing the integrity of ESI evidence is hash values. A hash value is defined as:

“A unique numerical identifier that can be assigned to a file, a group of files, or a portion of a file, based on a standard mathematical algorithm applied to the characteristics of the data set. The most commonly used algorithms, known as MD5 and SHA, will generate numerical values so distinctive that the chance that any two data sets will have the same hash value, no matter how similar they appear, is less than one in one billion. ‘Hashing’ is used to guarantee the authenticity of an original data set and can be used as a digital equivalent of the Bates stamp used in paper document production.”113

Purposes served by hash values/algorithms include:

(i) Ensuring “that the examined copy has not been altered” 114 during a forensic examination

(ii) Authenticating evidence introduced in court under FRE 901(b)(4) Lorraine v. Markel115

110

Krause, J (2008) Moving ESI as Real Evidence, Incisive Media[online] Available from: http://www.law.com/jsp/legaltechnology/pubArticleLT [Accessed 27/01/2009] 111

[US Dist. LEXIS 33020 (D. Md. May 4, 2007)] 112

Mark,M. and Kiker, D. (2009) Implications of Lorraine in Authenticating Evidence for e-Discovery, Findlaw.com[online]. Available from: http://blogs.findlaw.com/cgi-bin/mt/mt-tb.cgi/1079 [Accessed 15/01/2010] 113

“Managing Discovery of Electronic Information: A Pocket Guide for Judges” Federal Judicial Center, at 24(2007) 114

“ Federal Evidence *2010+ Using “Hash” Values in Handling Electronic Evidence”. FederalEvidence.com [Online] Available from: http://federaevidence.com/blog/2008.seotenber/using-%E2%80%9Chash%E2%80%9D-values-handling-electronic-evidence [Accessed 01/02/2010]

http://www.law.com/jsp/legaltechnology/pubArticleLT

http://blogs.findlaw.com/cgi-bin/mt/mt-tb.cgi/1079

http://federaevidence.com/blog/2008.seotenber/using-%E2%80%9Chash%E2%80%9D-values-handling-electronic-evidence

http://federaevidence.com/blog/2008.seotenber/using-%E2%80%9Chash%E2%80%9D-values-handling-electronic-evidence

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(iii) Courtesy of FRCP 26(f) some courts require that the use of hash values/algorithms be included as an issue to discuss at pre-trial meet and confer116

According to Salgado, RP (2005):

Examiners use hash values throughout the forensics process, from acquiring the data, through analysis, and even into legal proceedings. Hash algorithms are used to confirm that when a copy of data is made, the original is unaltered and the copy is identical, bit for bit. That is, hashing is employed to confirm that data analysis does not alter the evidence itself. Examiners also use hash values to weed out files that are of no interest in the investigation, such as operating system files, and to identify files of particular interest. 117

Hashing is the process of taking an input data string (the bits on a hard drive, for example), and using a mathematical function to generate a (usually smaller) output string. 118 Because hash values uniquely identify the underlying data, a technician who generates an image can use a hash algorithm to ensure that the copying was done accurately, to the bit.119 Although examinations are not necessarily flawed without hashing, the tool provides a reliable and inexpensive means to address critical data acquisition and examination goals. 120 Hashing can greatly speed up forensic analysis by acting as assorting mechanism. When a technician uses hashing to exclude files, not only can the examination conclude more efficiently, but it is also less intrusive.121 A technician can also match the media hash list against a known-file hash list to find particular files. This could include looking for evidence that the

115

241 F.R.D. 534, 546-47 (D. Md 2007) 116

“ Suggested Protocol for Discovery of Electronically Stored Information (“ESI”) U.S District Court for the District of Maryland, at 20-21 117

Salgado R P (2005)Fourth Amendment Search and the Power of the Hash, E-evidence.info [online]. Available from: http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.pdf [Accessed 14/01/2010] p38 118




Salgado R P (2005)Fourth Amendment Search and the Power of the Hash, E-evidence.info [online]. Available from: http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.pdf [Accessed 14/01/2010] p 43

http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.pdf





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computer had been compromised by malicious code, such as a worm, virus, or Trojan horse.122

PROPOSED MODIFICATIONS TO THE BEST EVIDENCE RULE IN NIGERIA

Sections 232(1), 232(2), 234(1) and 234(2) of the Evidence Act (Amendment) Bill 2009 contain the proposed amendments and are reproduced below: Section 232 (1) Evidence Act (Amendment) Bill 2009:

This Act does not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence

Section 232(2) Evidence Act (Amendment) Bill 2009:

The court may have regard to evidence adduced under this Act in applying any common law or statutory rule relating to the admissibility of records

Section 234(1) Evidence Act (Amendment) Bill 2009: In any legal proceeding, subject to subsection (2) of this section where the best evidence rule is applicable in respect of electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the data was recorded or stored

Section 234(2) Evidence Act (Amendment) Bill 2009:

In any legal proceeding, where an electronic record in the form of a printout has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, the printout is the record for the purposes of the best evidence rule.

122

Salgado R P (2005)Fourth Amendment Search and the Power of the Hash, E-evidence.info [online]. Available from: http://www.harvardlawreview.org/forum/issues/119/dec05/salgado.pdf [Accessed 14/01/2010] p43


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CHAPTER 3: THE HEARSAY EVIDENCE RULE AND ELECTRONICALLY STORED

INFORMATION (ESI) EVIDENCE

CHAPTER SUMMARY

In this chapter, Hearsay will be defined. Next, the hearsay evidence rule at common

law and in Nigerian law will be considered.

The hearsay evidence rule as it relates to electronically stored information (ESI)

evidence in the United States, the United Kingdom and Nigeria will then take centre-

stage.

Finally, the chapter will provide instances where ESI can be treated as exceptions to

the hearsay evidence rule.

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DEFINITION OF HEARSAY

Mozley & Whiteley’s Law Dictionary defines hearsay evidence as the “evidence of a fact not actually perceived by a witness with one of his own senses, but proved by him to have been stated by another person.”123

In other words, hearsay evidence is a repetition to the court of a statement by a witness of what someone had told him, or an evidentiary statement made by a non witness but restated in court by a witness if the object of the restatement is to establish the truth of what is contained in that statement.

ADMISSIBILITY OR OTHERWISE OF HEARSAY EVIDENCE

The general rule is that hearsay evidence is inadmissible, however, according to Mozley & Whiteley’s Law Dictionary “the law has from early times allowed several exceptions.”124

In Subramaniam v. Public Prosecutor125 the Judicial Committee of the Privy Council stated:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

IS THE COMMON LAW RULE AGAINST HEARSAY IN FORCE IN NIGERIA?

This common law against hearsay is not per se part of Nigerian law; this is so because the rule deals with inadmissibility of evidence while the incorporation of the English common law rule of evidence into our laws is only in regards to the admissibility of evidence.

123

Mozley & Whiteley’s Law Dictionary 1997, 9th

Edition,Buterworths, London p 156 124

Mozley & Whiteley’s Law Dictionary 1997, 9th

Edition,Buterworths, London p 156 125

1956 1 WLR 965

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Section 5 Evidence Act LFN 2004 which deals with admissibility of evidence states:

Nothing in this Act shall:

(a) prejudice the admissibility of any evidence which would apart from the provisions of this Act be admissible, or

(b) enable documentary evidence to be given as to any declaration relating to a matter of pedigree, if that declaration would not have been admissible as evidence if the Act had not passed.

The effect of Section 5(a) Evidence Act LFN 2004 is that evidence admissible under the common law is also admissible under the Act. However, the above principle cannot be applied in reverse.

That is, it is not the intention of Section 5(a) Evidence Act LFN 2004 that evidence inadmissible under the common law is also inadmissible under the Act, or under any other statute applicable in Nigeria.

In practice then, any rules of common law governing the exclusion of evidence are inapplicable in Nigeria, unless such rules have been incorporated into the Act.

And where this is so, Nigerian courts can look up to English decisions as guides to interpret such Nigeria statutory provisions.

But where the Evidence Act LFN 2004 has declared that a certain piece of evidence is inadmissible, then such evidence cannot be admitted under or by virtue of any rules of common law.

HEARSAY EVIDENCE IN NIGERIAN LAW

Section 76 Evidence Act LFN 2004 states

All facts, except the contents of documents, may be proved by oral evidence

Section 77 Evidence Act LFN 2004 states

Oral evidence must, in all cases whatever, be direct

(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact

(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact

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(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who say she perceived that fact by that sense or in that manner

(d) If it refers to an opinion or to the grounds on which that opinions held, it must be the evidence of the person who holds that opinion on those grounds

In effect, Section 77 Evidence Act LFN 2004 also called Best Evidence Rule is stating that the type of evidence which is to be tendered in our courts must be direct evidence, which means hearsay evidence is contrary to this section.

REASONS FOR THE EXCLUSION OF HEARSAY EVIDENCE IN NIGERIA

1. Such statements are not made on oath or affirmation and may therefore be

untrustworthy 2. The party against whom the evidence is tendered is absent from the court and

therefore is not subject to cross-examination so as to test the veracity of the statement

3. The exclusion of hearsay evidence has been cited as a device to enforce the best evidence rule

4. The admissibility or the exclusion of hearsay evidence which often generates arguments on both sides tends to protract litigation

5. In hearsay cases, the court cannot see the demeanour of the original party who is absent from the court.

6. A tale told is a tale altered.

HEARSAY RULE EXCEPTIONS IN NIGERIAN LAW

The recognised exceptions include:

Admissions in civil cases Voluntary confessions in criminal cases Declarations in the course of duty (Section 91 Evidence Act LFN 2004) Declarations against interest Declarations as to pedigree Declarations as to public and general rights Declarations as to bodily or mental conditions Dying declarations where murder or manslaughter is the subject of the

charge Declarations as to contents of wills Evidence given in former proceedings Statements in public documents

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THE HEARSAY RULE, ELECTRONICALLY STORED INFORMATION (ESI)

EVIDENCE AND THE UNITED STATES

According to Scheindlin, S.A., & Capra, D.J., (2009):

Generally speaking, hearsay problems are treated the same whether they are in hardcopy or digital records. In federal courts, hearsay issues are addressed by Federal Rules of Evidence 801 (defining hearsay, and creating exemptions for, inter alia, admissions by a party–opponent and prior statements of testifying witnesses):126

The United States Federal Rules of Evidence Rule 801 is reproduced below:

The following definitions apply under this article:

(a) Statement. — A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. — A “declarant” is a person who makes a statement. (c) Hearsay. — “Hearsay” is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. — A statement is not hearsay if — (1) Prior statement by witness. — The declarant testifies at the trial or

hearing and is subject to cross examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. — The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The

126

Scheindlin, S. and Capra, D. (2009). Electronic Discovery and Digital Evidence: Cases and Materials - Minnesota: West Publishing Co p 520

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contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

EXCEPTIONS TO THE HEARSAY RULE SET FORTH IN FRE RULE 801 (D)

The United States Federal Rules of Evidence Rule 801(d) is reproduced above.

In United States v. Dupre127 the question that arose for determination was “under what circumstances can emails of non-testifying witnesses be admitted?”

The e-mails from the non-testifying investors were accepted as non-hearsay evidence for three purposes:

First, the e-mails supplied “context for defendants’ messages sent in response to them”

Second, the e-mail messages also “served to rebut defendants’ argument that they had no reason to know the Roberta Project was fraudulent.”

Finally, the e-mail “messages demonstrated that defendants had received communications detailing the project’s likely bogus nature.”

While the introduction of e-mails of non-testifying witnesses normally is subjected to a hearsay challenge, the United States v. Dupre case demonstrates some circumstances in which the e-mails may be admitted for a non-hearsay purpose in a fraud case. 128

ESI AND THE BUSINESS RECORDS EXCEPTION IN THE US [FRE Rule 803(6)]

The United States Federal Rules of Evidence Rule 803 (6) is reproduced below:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: …

127

[462F.3d 131 (2nd

Cir. 2006)] 128

Federal Evidence Review (2009) Fraud Case E-mails of Non-Testifying Investors admitted in Non-Hearsay. Federal Evidence Review [online] http://federaleavidence.com/blog/2009/february/fraud-case-e-mails-non-testifying-investors-admitted-non-hearsay [Accessed 01/02/2010]

http://federaleavidence.com/blog/2009/february/fraud-case-e-mails-non-testifying-investors-admitted-non-hearsay

http://federaleavidence.com/blog/2009/february/fraud-case-e-mails-non-testifying-investors-admitted-non-hearsay

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(6) Records of regularly conducted activity. — A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

In United States v. Fujii129 the question that arose for determination on appeal was

whether an airlines check-in and reservation computer records were made in the ordinary course of business

Whether there were trustworthy.

In the trial court, the above records were used to convict the defendant. The Seventh

Circuit concurred with the trial court's admission of the records as business records

under FRE 803(6) noting:

computer data compiled and presented in computer printouts prepared

specifically for trial is admissible under Rule 803(6), even though the printouts

themselves are not kept in the ordinary course of business.

And observed that based on the testimony of the airlines' witness, in the instant

case, those records were made in the ordinary course of business. It went on to say

that the defendant did not prove that the record could not be trusted and the fact

that the records were printed at the request of an IRS agent did not alter the

character of the business record.130

Kerr, O.S (2001) commented on the business records exception thus:

Notably, the printout itself may be produced in anticipation of litigation

without running [a]foul of the business records exception. The requirement

that the record be kept “in the course of a regularly conducted business

129

[301 F.3d 535 (7th

Cir. 2002)] 130

Federal Evidence Review (2009) Fraud Case E-mails of Non-Testifying Investors admitted in Non-Hearsay. Federal Evidence Review [online] Available at: http://federalevidence.com/blog/2009/june/admitting-airline-computerized-business-records [Accessed 21/01/2010]

http://federalevidence.com/blog/2009/june/admitting-airline-computerized-business-record

http://federalevidence.com/blog/2009/june/admitting-airline-computerized-business-record

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activity” refers to the underlying data, not the actual printout of that data. See

United States v. Saunders131. The business record exception is the most

common hearsay exception applied to computer records.132

In United States v. Salgada133 a case involving the application of the hearsay evidence

rule (and the business records exception) to digital evidence, it was held that:

A business record must satisfy four requirements in order to be admissible

under Rule 803(6):

1) It must have been made in the course of a regularly conducted business

activity;

2) It must have been kept in the regular course of that business

3) The regular practice of that business must have been to have made the

memorandum; and

4) The memorandum must have been made by a person with knowledge

of the transaction or from information transmitted by a person with

knowledge.134

ESI AND THE PUBLIC RECORDS EXCEPTION IN THE US [FRE Rule 803(8)]

The United States Federal Rules of Evidence Rule 803 (8) is reproduced below:

(8) Public records and reports. — Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

In United States v. Lopez-Moreno135 the question that arose for determination was

"whether it was permissible for government deportation records to be admitted

131

[749 F.2d 195, 198 (5th

Cir. 1984)] 132

Kerr, O. S. (2001) Computer Records and the Federal Rules of Evidence: US Attorneys’ USA Bulletin 42(2) 133

[250 F.3d 438 (6th

Cir. 2001)] 134

Scheindlin, S. and Capra, D. (2009). Electronic Discovery and Digital Evidence: Cases and Materials - Minnesota: West Publishing Co p544

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under public records hearsay exception." At the trial court, a Bureau of Immigration

and Custom Enforcement computer printout served as the basis on which the

defendant was convicted.

On appeal, the Fifth Circuit concurred with the decision of the trial court and noted:

"Under Rule 803(8), records, including computer records, made by a public

agency are admissible, regardless of whether they would otherwise be

excluded as hearsay."136

ESI EVIDENCE MAY OR MAY NOT BE HEARSAY

ESI EVIDENCE AS HEARSAY

If the electronically stored information (ESI) evidence which is generated on a

computer by a human being and is stored on a computer is presented as evidence,

the court has the discretion to consider it hearsay.

According to Kerr, O.S (2001)

When a computer record contains the assertions of a person, whether or not processed by a computer, the record can contain hearsay. In such cases, the government must fit the record within a hearsay exception such as the business records exception, FRE 803(6). Computer-stored records that contain human statements must satisfy an exception to the hearsay rule if they are offered for the truth of the matter asserted. Before a court will admit the records, the court must establish that the statements contained in the record were made in circumstances that tend to ensure their trustworthiness. 137

ESI EVIDENCE AS NON-HEARSAY

If the electronically stored information (ESI) evidence is computer-generated without

any human input at all, then it is not hearsay.

135

[420 F. 3d 420 (5th

Cir. 2005)] 136

Lopez - Moreno, 420 F.3d at 436 Available at: http://federalevidence.com/blog/2008/october/computer-records-admitted-under-public-records-hearsay-exception [Accessed 21/01/2010] 137

Kerr, O.S (2001) Computer Records and the Federal Rules of Evidence: US Attorneys’ USA Bulletin 49 (2)

http://federalevidence.com/blog/2008/october/computer-records-admitted-under-public-records-hearsay-exception

http://federalevidence.com/blog/2008/october/computer-records-admitted-under-public-records-hearsay-exception

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According to Kerr, O.S (2001)

When a computer record contains only computer-generated data untouched by human hand, however, the record cannot contain hearsay. In such cases, the government must establish the authenticity of the record, but does not need to establish that a hearsay exception applies for the records to be admissible… By definition, an assertion cannot contain hearsay if it was not made by a human being. Can we just the word person? See Federal Rules of Evidence 801(a) (“A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”) (emphasis added); Federal Rules of Evidence 801(b) (“A declarant is a person who makes a statement.”) (emphasis added).138

In the Nigerian context, examples of computer-generated ESI would be SMS notifications of banking transactions as well as SMS delivery reports.

In United States v Hamilton139, the Tenth Circuit explained when electronically stored information (ESI) evidence is not hearsay when it said:

Of primary importance to this ruling is the uncontroverted fact that the header information was automatically generated by the computer hosting the newsgroup each time Hamilton uploaded a pornographic image to the newsgroup. In other words, the header information was generated instantaneously by the computer without the assistance or input of a person. As concluded by the district court, this uncontroverted fact clearly places the header information outside of Rule 801(c)’s definition of “hearsay.” In particular, there was neither a “statement” nor a “declarant” involved here within the meaning of Rule 801.140

In United States v Washington141, the question that arose for determination was whether machine-generated information was subject to a hearsay challenges. The Fourth Circuit concluded that “raw data generated by the machines do not constitute ‘statements,’ and the machines are not ‘declarants.’”142

138

Kerr, O.S (2001) Computer Records and the Federal Rules of Evidence: US Attorneys’ USA Bulletin 49 (2) 139

[ 413 F. 3d 1138, 1142-43 (10th

Cir. 2005)] 140

Federal Evidence Review (2009) Computer Generated Evidence May be Non-Hearsay. Federal Evidence Review [online] http://federalevidence.com/blog/2008/september/computer-generated-evidence-may-be-non-hearsay [Accessed 04/02/2010] 141

[498 F. 3d 225 (4th

Cir. 2007)] 142

Federal Evidence Review (2009) Machine-Generated Data was Not a Statement and Raised No Hearsay or Confrontation Clause Issues. Federal Evidence Review [online] http://federalevidence.com/blog/2008/december/machine-generated-data-was-not-statement-and-raised-no-hearsay-or-confrontation-c [Accessed 01/02/2010]

http://federalevidence.com/blog/2008/september/computer-generated-evidence-may-be-non-hearsay

http://federalevidence.com/blog/2008/september/computer-generated-evidence-may-be-non-hearsay

http://federalevidence.com/blog/2008/december/machine-generated-data-was-not-statement-and-raised-no-hearsay-or-confrontation-c

http://federalevidence.com/blog/2008/december/machine-generated-data-was-not-statement-and-raised-no-hearsay-or-confrontation-c

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To this, the Editor of the Federal Evidence Review commented: “The position of the majority in Washington may be applied to other evidentiary contexts involving machine-generated information. For example, a similar result has been used for machine-generated information by computers.”

The court in United States v Robinson143 failed to take heed of the above distinction between computer-generated and computer-stored ESI.

THE HEARSAY RULE, ESI EVIDENCE AND THE RULING IN LORRAINE V. MARKEL

Unless the 5 step analysis proposed by Judge Grimm in Lorraine v Markel144 and reproduced below is followed, the court will make the mistake of treating all ESI equally when in practice and in law, there should be a distinction between computer-stored and computer-generated electronically stored information (ESI) evidence.

In the words of Judge Grimm:

Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.145

Humans makes statements; computers do not, at least not in the sense of the hearsay evidence rule. Judge Grimm then zeroes in on how the court should apply the hearsay evidence rule in respect of ESI:

The fourth “hurdle” that must be overcome when introducing electronic evidence is the potential application of the hearsay rule. Hearsay issues are

143

[272 Neb. 582, 724 N.W. 2d 35 (Neb. 2006)] 144

[241 F.R.D at 538 (D. Md. 2007)] 145

Lorraine v Markel [241 F.R.D at 538 (D. Md. 2007)]

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pervasive when electronically stored and generated evidence is introduced. To properly analyze hearsay issues there are five separate questions that must be answered: (1) does the evidence constitute a statement, as defined by Rule 801(a); (2) was the statement made by a “declarant,” as defined by Rule 801(b); (3) is the statement being offered to prove the truth of its contents, as provided by Rule 801(c); (4) is the statement excluded from the definition of hearsay by rule 801(1); and (5) if the statement is hearsay, is it covered by one of the exceptions identified at Rules 803, 804 or 807. It is critical to proper hearsay analysis to consider each of these questions.146

Following which he groups the 29 exceptions to the hearsay rules into three classes147 and examines those having a bearing on electronically stored information. He finally warns that it is the course of wisdom to “…pay attention to exhibits offered by an opponent, as much as to those records that you need to introduce. A failure to raise a hearsay objection means that the evidence may be considered for whatever probative value the finder of fact chooses to give it.”148

In the context of Rule 801(a), computer-generated ESI cannot be hearsay.

THE HEARSAY EVIDENCE RULE, ELECTRONICALLY STORED INFORMATION

(ESI) EVIDENCE AND THE UK

Section 1 Civil Evidence Act 1995 abolished the common law hearsay evidence rule in the UK. It is reproduced below:

1. (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

146

Lorraine v Markel [241 F.R.D at 538 (D. Md. 2007)] 147

According to Grimm, P.W., Zicardi, M.V., Major, A.W., (2008-2009)Back to the Future: Lorraine v Markel Insurance Co. and New Findings on the admissibility of electronically Stored Information. Akron Law Review, 42 (2) p 402 The three classes are: (1) those dealing with perception, observation, state of mind, intent and sensation; (2) those involving documents, records and other writings; and (3) statements dealing with reputation. 148

LexisNexis [2007] Electronic Evidence 101, LexisNexis [online]. Available from: http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf [Accessed 04/02/2010]


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BAINBRIDGE, D (2000) made this comments in relation to the triad of the hearsay

evidence rule, electronically stored information (ESI) evidence and the UK:

In relation to civil proceedings, this rule has all but been abolished but it remains firmly in place in criminal cases … in the case of computer documents there has to be some exception to the hearsay rule as, in many cases, it will not be possible to identify the person or persons who entered the information in question… it must also be recognised, however, that computers are not infallible and some fundamental requirements have to be satisfied before computer documents can be admitted in evidence in criminal proceeding under an exception to the hearsay.149

WEIGHT TO BE ATTACHED TO HEARSAY EVIDENCE IN THE UK

Section 4 Civil Evidence Act provides as follows:

4.(1)In estimating the weight (if any) to be given to hearsay evidence in civil

proceedings the court shall have regard to any circumstances from which any

inference can reasonably be drawn as to the reliability or otherwise of the evidence.

4.(2)Regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by

whom the evidence was adduced to have produced the maker of the original

statement as a witness;

(b) whether the original statement was made contemporaneously with the

occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent

matters;

(e) whether the original statement was an edited account, or was made in

collaboration with another or for a particular purpose;

(f)whether the circumstances in which the evidence is adduced as hearsay are

such as to suggest an attempt to prevent proper evaluation of its weight.

149


Edition, London: Longman p339

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And to this, Bainbridge, D(2000) has this to say:

Hearsay may carry little weight unless it would have been admissible under Part I of the Civil Evidence Act 1968, now repealed. Factors included:

Regularity – whether the computer was regularly used to store or process information, for the purposes of any activities regularly carried out, over a period which includes the time when the document was made.

Consistency – during the relevant period information of the kind contained in the document (or of a kind from which such information is derived) was regularly supplied to the computer in the ordinary course of those activities.,

Reliability – the computer was operating properly during the material part of that period (or, if not, any malfunction or breakdown that occurred would not have affected the accuracy of the material contained in the document)

Orthodoxy – the information contained in the document reproduces or is derived from information supplied to the computer in the ordinary course of the activities regularly carried out over the period in question. 150

BUSINESS AND PUBLIC RECORDS EXCEPTIONS TO THE HEARSAY RULE

Section 9 Civil Evidence Act 1995 which makes provisions for business and public records exceptions in the UK is reproduced below:

9.-(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

9(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose-

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

150


Edition, London: Longman p270/1

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9(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

9(4) In this section –

“records” means records in whatever form

“business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;

“officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and

“public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.

9(5)The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or a description of documents and records.

Reed, C. and Davies, L. (2000) gave the following analysis:

Section 9 Civil Evidence Act 1995 provides that documents which form part of the records of a business (defined very widely) are automatically admissible and the absence of an entry in those records can be prove by an appropriately signed certificate.151

JUDICIAL DETERMINATION OF A “RECORD”

For the judicial definition of record, our authority is H v. Schering Chemicals152, a case involving an application for an order to admit certain documents as evidence at the trial of the action in which Bingham J held that:

A record for the purposes of Section 4 of the Criminal Evidence Act 1978 was either a document that gave effect to a transaction or contemporaneous register of information supplied by those with direct knowledge of the facts supplied; that the documents sought to be introduced by the plaintiffs were digests or analysis of records which existed or had existed, and therefore, the documents were not records and were not admissible in evidence under the provisions of Section 4….The intention of that section was, I believe to admit in evidence records which a historian would regard as original or primary

151

Reed, C. and Davies, L. (2000) Computer Law. 4th

Edition London: Blackstone Press Limited p306/307 152

1978 H. No. 7465

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sources, i.e., documents which either give effect to a transaction itself or which contain a contemporaneous register of information supplied by those with direct knowledge of the facts… The documents in the present case, I think, are not records and are not primary or original sources. They are a digest or analysis of records which must exist or have existed, but they are not themselves records.

According to Reed, C. and Davies, L. (2000), the effect of the above ruling in the light of the Civil Evidence Act 1995 is that: “… the majority of computer records will all under Section 8 rather than the more familiar Section 9.”153

ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE AS A EXCEPTION

TO THE HEARSAY EVIDENCE RULE IN THE UK

In Lord Advocate’s Reference,154 the court had to determine amongst other issues, “whether evidence of the content of entries in the computer records from the computer operations controller in the circumstances was competent and admissible.”

The court held

That as it was well-recognised that hearsay evidence was admissible when it became the best evidence and the law did not compel people to do that which was impossible, there was no fundamental objection in principle to recognition of the application of an exception to the case of computer records, provided always that the evidence established that, due to the manner of the operation of the computer or the method of organisation by which information was put into it, it was not only not reasonably practical, but impossible, to identify the authors of the entries which required to proved so that the evidence of the computer operations controller was competent and admissible in the circumstance of this case; and questions answered accordingly.155

153


Edition London: Blackstone Press Limited p306/307 154

No. 1 of 1992 155

Lord Advocate’s Reference No. 1 of 1992

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CHAPTER 4: AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI)

CHAPTER SUMMARY

This chapter will attempt to define authentication, authenticity, prove that there is a relationship between authentication and relevance, discusses requirements for authenticating ESI in Nigeria and the United States.

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NOTES ON AUTHENTICATION – WIKIPEDIA Authentication, in the law of evidence, is the process by which documentary evidence and other physical evidence is proven to be genuine, and not a forgery. Generally, authentication can be shown in one of two ways. First, a witness can testify as to the chain of custody through which the evidence passed form the time of discovery up until the trial. Second, the evidence can be authenticated by the opinion of an expert witness examining the evidence to determine it has all the properties that it would be expected to have if it were authentic.156 AUTHENTICATION AND ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE According to Paul, G (2008):

The questions usually asked to determine authenticity are either: “Is this object what people claim it to be?” or “Is this object what it purports to be on its face?” If the finder of a fact, from all the evidence, concludes that the answer is no, the object is not authentic.… Authenticity … highlights that objects are themselves “facts”, with attributes, or characteristics, tying them to the circumstance of a case in the form of explicit or implied statements… Accordingly, when we discuss objects, there is not only information carried by the object, but also a kind of “meta-information”, or information about the object itself, which are the assertions about the objects attributes. Whether these assertions about the objects attributes are true determines authenticity.157

In the analysis of authentication in relation to electronically stored information (ESI) evidence, the following questions are pertinent:

What is the identity of the person(s) behind the birth/creation of the ESI record?

Has the state of the ESI record remained static or inert over time? When was the ESI record created?

156

Wikipedia (2010) Authentication, Wikipedia [online]. Available from: http://en.wikipedia.org/wiki/Authentication-(law) [Accessed 01/02/ 2010] 157

Paul, GL (2008) Foundations of Digital Evidence Chicago: American Bar Association Publishing p33

http://en.wikipedia.org/wiki/Authentication-(law)

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Was the identity of the person connected/associated with the ESI record at the point of creation/birth or subsequently?

Is the connection/association between the object and the identity of its creator alterable or unalterable? If alterable, can such alterations be detected?

Does the passage of time, without any sort of external influence change the ESI record?

Can the ESI record be associated with a place, e.g., Abuja, Nigeria or a thing e.g., an Internet Protocol address or cell phone number? Is the association trustworthy? Or can the association be forged?

Answers to these questions are provided by one or a combination of:

1. Circumstantial evidence: According to the EnCase Legal Journal, “a document may be authenticated through circumstantial evidence. A computer forensic examination is often an effective means to authenticate electronic evidence through circumstantial evidence. The examiner must be able to provide competent and sufficient testimony to connect the recovered data to the matter in question.”158

2. Oral/direct evidence: (Section 77 Evidence Act LFN 2004) 3. Inbuilt technological features: of the system or record159 if they are

particularly specifically designed with this in mind or through embedded features of the record itself such as digital signatures

The answers to these questions are important because ESI evidence unlike paper evidence is very volatile, and by that is meant that its unique features include:

ease of undetectable alteration alteration through routine handling “unintentional” spoliation Gates Rubber v. Bando Chemical Industries160 automatic overwriting and recycling161

158

Guidance Software, Inc. (2008) EnCase® Legal Journal. October 2008 Edition, Guidance Software, Inc, p11.

Please compare Sections 57(1) and (2) as well as 60 of the Evidence Act LFN 2004 which provides for expert testimony and opinion. 159


Edition London: Blackstone p308 160

[167 F.R.D 90 (D. Colo.1996)] 161

Withers, K.J., June 2002 Electronic Discovery presented at the National Workshop for US Magistrates p 12 Available online at http://www.kenwithers.com/articles/minneapolis/index.html [Accessed 13/08/2009]

http://www.kenwithers.com/articles/minneapolis/index.html

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AUTHENTICITY AND RELEVANCY The whole of the law of evidence hangs primarily on admissibility and inadmissibility of evidence. Whether a particular piece of evidence is admissible or not is dependent upon whether or not the fact to be established by the evidence is relevant to the facts-in-issue. According to Nokes, G. D. (1967) “the question whether proferred evidence is admissible or inadmissible may involve four … questions,” 162 the first of which is relevant in this context and therefore is stated below:

“First, are the facts sought to be proved admissible as being facts in issue, or relevant to the facts in issue, or relevant on any other ground?”

Hence the United States Federal Rules of Evidence 401 defines “relevant evidence” to mean “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable without the evidence”. From the FRE Rule 401’s definition, the weight of evidence is inextricably tied to the relevance or relevancy of the evidence concerned. Thus, the effect of FRE 402 is that if evidence is relevant, it admissible, but if evidence is irrelevant, it is inadmissible. Section 2(1) Evidence Act LFN 2004 agrees in principle with Nokes, G.D (1967) because it defines fact in issue as follows:

includes any fact from which either by itself or in connection with other facts the existence, non-existence , nature or extent if any right, liability or disability assented or denied in any suit or proceeding necessary follows.

Facts in issue are those things which a plaintiff must prove to establish his claim or those things which a defendant will have to proof to establish his defence. For a fact to be a fact-in-issue depends on the law and the pleadings of the parties. It is only facts which are relevant to the fact(s)-in-issue that can serve as the basis for the admissibility of a piece of evidence.



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Evidence is admissible only to prove fact(s)-in-issue and facts relevant to fact(s)-in-issue. Section 7 Evidence Act LFN 2004 which is the Nigerian statutory enactment of the Common Law doctrine of Res Gestae provides for the admissibility of relevant facts that might not be facts in issue. See also Sections 8, 9(1), 9(2), 9(3), 9(4), 10, 11(1), 11(2) and 12 Evidence Act LFN 2004 which discuss the issue of relevancy and which have been reproduced below:

8. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant. 9. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (2) The conduct of any party, or of any agent to any party, to any proceedings, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

(3) The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this provision shall not affect the relevancy of statements under any other section.

(4) When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant.

10. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. 11. (1) Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by

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any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it; but statements made by individual conspirators as to measures taken in the execution or furtherance of any such common intention are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made. (2) Evidence of acts or statements deemed to be relevant under this section may not be given until the court is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy to which they relate.

12. Facts not otherwise relevant are relevant - (a) if they are inconsistent with any fact in issue or relevant fact;

(b) if by themselves or in connection with other facts they make the existence or non existence of any fact in issue or relevant fact probable or improbable.

According to Paul, GL (2008), “evidence can have debatable authenticity because a record is claimed to be associated with a person or entity other than the truthful entity, or it can be debatable because the content of a record could have changed over time, or the record could have been created or signed at a time other than what is stated on or about the record… authenticity means that things are as they are claimed to be. Authenticity is considered a subset of relevance because, unless and object is authentic, it does not have proper evidentiary weight.”163 It can thus been said “that whether a piece of evidence is indeed authentic is almost always a question of circumstantial evidence that can implicate facts intrinsic to the record (such as handwriting, signatures, or perhaps metadata), or facts extrinsic to the record (such as where the record is found, what the record replied to, or what a person testifies about a record).164

163

Paul, GL (2008) Foundations of Digital Evidence Chicago: American Bar Association Publishing p38 164

Paul, GL (2008) Foundations of Digital Evidence Chicago: American Bar Association Publishing p43

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CHALLENGES TO AUTHENTICITY165 Were the records altered, manipulated or damaged after they were created?

(a challenge to the authenticity of both computer-generated and computer-stored records)

o Courts are sceptical of unsupported claims of alteration Reliability of the computer program that generated the records (a challenge to

the authenticity of computer-generated records) o Program routinely relied upon in the normal course of business

Identity of the author of the records (a challenge to the authenticity of computer-stored records)

o Corroborate with circumstantial evidence AUTHENTICATION, AUTHENTICITY AND THE EVIDENCE ACT The word “authentication” does not exist in the current “Evidence Act”, i.e., Evidence Act LFN 2004. However, its cousin “authenticated” appears in Section 81 Evidence Act LFN 2004 in relation to affidavit, it also appears twice in Section 118 Evidence Act LFN 2004 in relation to powers of attorney. In Section 91(4) Evidence Act LFN 2004, there is an implied reference but no express mention is made of it. However, the proposed Section 233 Evidence Act (Amendment) Bill 2009 states:

The person seeking to introduce an electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.

This above section needs to be read with Section 232(1) and 232(2) of the same Bill which states:

232.- (1)This Act does not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence. (2) A court may have regard to evidence adduced under this Act in applying any Common Law or statutory rule relating to the admissibility of records

165

Stephenson, P (2004) Ensuring the Reliability and Admissibility of Digital Evidence, emich.edu [online] . Available from: http://people.emich.edu/pstephen/my_presentations/Ensuring%20the%20Reliability%20and%20Admissibility%20of%20Digital%20Evidence%20-%201%20hr.ppt [Accessed 09/06/2009]



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AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – STATUTORY PROVISIONS Sections 100 to 108 of the Evidence Act LFN 2004 treats the Authentication of Documentary Evidence in Nigeria, under this sub-heading those sections relevant to Electronically Stored Information (ESI) evidence will be analysed. SECTION 100 EVIDENCE ACT LFN 2004 100. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. COMMENTARY ON SECTION 100 Section 100 Evidence Act LFN 2004 treats authentication via signature i.e., signing and authentication via handwriting. Simeon Olusoji Kuforiji & Another v. V.Y.B (Nigeria) Ltd166. The above section as currently worded does not and cannot be made to apply to ESI evidence of any kind by any stretch of the imagination.167 ESI is in general not handwritten (an example of handwritten ESI is using a stylus or tablet pen). ESI can be signed in the case of digital signatures. [See Section 240 of the Evidence Act (Amendment) Bill 2009] SECTION 101(1) EVIDENCE ACT LFN 2004 101. (1) Evidence that a person exists having the same name, address, business or occupation as the maker of a document purports to have, is admissible to show that such document was written or signed by that person. COMMENTARY ON SECTION 101(1) It was the application of similar principles in the Federal Rules of Evidence 901(a) that led to the conviction in United States v. Tank168 This sub-section as currently worded is applicable to ESI.

166

(1981) 6-7 SC 40 167

Of course, it can be argued that using a digital stylus with a pen-enabled tablet PC which accepts writing directly to the screen (and saving the same to the disk) means that ESI can be handwritten. Ultimately, this is an issue which the judiciary will have to settle. But see http://en.wikipedia.org/wiki/Microsoft_OneNote 168

[200 F.3d 627(9th

Cir. 2000)]

http://en.wikipedia.org/wiki/Microsoft_OneNote

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SECTION 101(2) EVIDENCE ACT LFN 2004 101 (2) Evidence that a document exists to which the document the making of which is in issue purports to be a reply, together with evidence of the making and delivery to a person of such earlier document, is admissible to show the identity of the maker of the disputed document with the person to whom the earlier document was delivered. COMMENTARY ON SECTION 101(2) The wording makes it applicable to ESI provided that the definition of “document” in Section 2(1) Evidence Act LFN 2004 includes ESI. See also Section 3 of the Evidence Act (Amendment) Bill 2009. SECTION 102(1) EVIDENCE ACT LFN 2004 102. (1) Evidence that a person signed a document containing a declaration that a seal was his seal is admissible to prove that he sealed it. COMMENTARY ON SECTION 102(1) This section is anti-ESI as currently worded. But see Section 240 Evidence Act (Amendment) Bill 2009 SECTION 103 EVIDENCE ACT LFN 2004 103. (1) In any proceedings, whether civil or criminal, an instrument to the validity of which attestation is required by law may, instead of being proved by an attesting witness, be proved in the manner in which it might be proved if no attesting witness were alive;

Provided that nothing in this section shall apply to the proof of wills or other testamentary documents.

(2) If no attesting witness is alive, an instrument to the validity of which attestation is required by law is proved by showing that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person.

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COMMENTARY ON SECTION 103(1) Oral evidence can authenticate a non self-authenticating document. See Whyman v. Garth169, Bowman v. Hodgson170 and Coles v. Coles171. At least one attesting witness will do unless none is available. See R v. Harringworth (Inhabitants).172 This Section appears to be Pro-ESI. SECTION 104 EVIDENCE ACT LFN 2004 104. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. COMMENTARY ON SECTION 104 This Section appears to be Pro-ESI. SECTION 105(1) EVIDENCE ACT LFN 2004 105. (1) A person seeking to prove the due execution of a document is not bound to call the party who executed the document or to prove the handwriting of such party or of an attesting witness in any case where the person against whom the document is sought to be proved -

(a) produces such document and claims an interest under it in reference to the subject matter of the suit; or

(b) is a public officer bound by law to procure its due execution, and he has dealt with it as a document duly executed.

COMMENTARY ON SECTION 105 (1) To authenticate non self-authenticating documents, the Section provides for

(1) Calling the person who executed it (2) Calling the person who made the writing as a witness

169

(1858) Ex 803; 153 ER 1578 170

(1867) L.R. 1 P & D. 362 171

(1866) L.R. 1 P. & D. 70 172

(1815) 4 M. & S. 350; 105 ER 863

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The only exceptions are where secondary evidence is permissible (Section 97 Evidence Act LFN 2004) and with respect to ancient documents (Section 123 Evidence Act LFN 2004). This section is anti-ESI. SECTION 106 EVIDENCE ACT LFN 2004 106. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. COMMENTARY ON SECTION 106 See Bowman v. Hodgson173, Pilkington v. Gray174 Circumstantial evidence can authenticate ESI. This section is Pro-ESI. SECTION 108 EVIDENCE ACT LFN 2004 108. (1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.

(2) The court may direct any person present in court to write any words or figures or to make finger impressions for the purpose of enabling the court to compare the words, figures or finger impressions so written with any words, figures or finger impressions alleged to have been written or made by such person:

Provided that where an accused person does not give evidence he may not be so directed to write any words or figures or to make finger impressions.

(3) After the final termination of the proceedings in which the court required any person to make his finger impressions such impressions shall be destroyed. COMMENTARY ON SECTION 108 This section is anti-ESI.

173

(1867) LRIP & D 362 174

(1989) AC 401

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SELF-AUTHENTICATING DOCUMENTS UNDER THE EVIDENCE ACT Section 113 Evidence Act LFN 2004 lists them as including: (a) Acts of the National Assembly or Laws of a State legislature, proclamations, nominations, appointments and other official communications of the Government of Nigeria or of any State thereof or of any Local Government -

(i) which appear in the Federal Gazette or the Gazette of a State, by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify,

(ii) by a copy thereof certified by the officer who authorised or made such order or issued such official communication,

(iii) by the records of the departments certified by the heads of those departments respectively or by the Minister or in respect of matters to which the executive authority of a state extends by the Governor or any person nominated by him, or

(iv) by any document purporting to be printed by order of Government;

(b) the proceedings of the Senate or of the House of Representatives - by the minutes of that body or by published Acts or abstracts, or by copies purporting to be printed by order of Government; (c) the proceedings of a State House of Assembly - by the minutes of that body or by published Laws, or by copies purporting to be printed by order of Government;

(d) the proceedings of a municipal body in Nigeria - by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;

(e) Acts of Parliament of the United Kingdom and other statutes thereof enacted including proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government - by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's printer;

(f) the acts or Ordinances of any other part of the Commonwealth, and the subsidiary legislation made under the authority thereof - by a copy purporting to be printed by the Government printer of any such country;

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(g) treaties or other acts of State of the United Kingdom or proclamations, treaties or acts of State of any other country- by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign;

(h) books printed or published under the authority of the Government of a foreign country, and purporting to contain the statutes, code or other written law of such country, and also printed and published books of reports of decisions of the courts of such country, and books proved to be commonly admitted in such courts as evidence of the law of such country, shall be admissible as evidence of the law of such foreign country;

(i) any judgment, order or other judicial proceeding outside Nigeria, or any legal document filed or deposited in any court -

(i) by a copy sealed with the seal of a foreign or other court to which the original document belongs, or, in the event of such court having no seal, to be signed by the judge, or, if there be more than one judge, by any one of the judges of the said court, and such judge must attach to his signature a statement in writing on the said copy that the court whereof he is judge has no seal, or

(ii) by a copy which purports to be certified in any manner which is certified by any representative of Nigeria or if there is no such representative appointed then by any representative of the United Kingdom in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records;

(j) public documents of any other class elsewhere than in Nigeria - For the documents so listed, there is no need to identify or authenticate since upon admittance into evidence they may be said to auto-authenticate themselves, provided that as the Section recommends: “… the original, or … a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.” The class of documents that self-authenticate in Nigerian law are known as “public documents”. (See Section 109 Evidence Act LFN 2004) The class of documents that do not self-authenticate in Nigerian Law are known as “private documents”. (See Section 110 Evidence Act LFN 2004)

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AUTHENTICATION ON NON SELF–AUTHENTICATING DOCUMENTS IN NIGERIA (AUTHENTICATION PROCEDURES FOR PRIVATE DOCUMENTS)

(1) Prove that it was signed by the person by whom it purports to have been signed

(2) If duly executed is admitted by the parties, the document self-authenticates at that point

(3) Document self-authenticates if the documents is in the possession of the other party who refuses to produce it even after notice to produce. See Cooke v. Tanswell175

(4) Self authenticates if parties waive the need to follow authentication process (applicable to civil proceedings only)176

AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN NIGERIAN COURTS – EFCC v. KAYODE177 On March 26, 2009 the Federal High Court, Lagos presided over by Justice Ahmed Ramat Mohammed rejected the computer print-out of a statement of account which the EFCC had tendered before the court as evidence in the alleged money laundering trial of former Aviation Minister, Femi Fani Kayode holding that it was inadmissible under Section 97(1)(h) and Section 97(2)(e) Evidence Act LFN 2004. In the words of the learned Justice Mohammed “… even if the said statement of account was relevant to the proceedings, it was inadmissible under Section 97(1)(h) and Section 97(2)(e) Evidence Act LFN 2004”178 A few days later, the EFCC filed a notice of appeal and raised the following issues:

That the learned trial judge erred in law when he relied on UBA v. SAFPU179 and supported by the Supreme Court ruling in YESUFU v. ACB180 to hold that the certified true copy (CTC) of a computer print-out of the respondent’s statement of account was inadmissible under any circumstances by virtue of the provisions of the Evidence Act LFN 2004.

That the statement of account produced in Court by the Manager of the bank at the time was admissible under Evidence Act LFN 2004

175

(1818) 8 TAUNT 450 ; 129 ER 458 176

Nathaniel Okeke v Okunkwe Obidife & Others (1965) NMLR 113; 1 ALL NLR 50; WNLR 107 177

Thisday March 27, 2009 p 6 178

Thisday (2009) Archaic Law Threatens Anti-graft war. AllAfrica Global Media. Available from: http://www.allafrica.com/stories/200903270059.html [Accessed 22/01/2010] 179

(2004) 3 NWLR (Pt. 861) 516 180

(1976) ANLP (Pt. 1) 328

http://www.allafrica.com/stories/200903270059.html

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That UBA v. SAFPU181 is a Court of Appeal decision “whereas the Supreme Court had held in cases like Unity Life and Insurance Co Ltd v. IBWA Ltd182 and others that a computer print-out is admissible as secondary evidence.”

That “relying on Egbue v. Araka183 “a certified document in that it is a true copy made from and compared with the original” which “satisfies the requirement of admissible secondary evidence provided for in the Evidence Act”

“that the learned trial judge erred in law when he held that the statement of account sought to be tendered, though relevant is not admissible,” noting “that the position of the law, especially in criminal trial, in that, once a document is relevant, it is also admissible.”184

That the decision of the Federal High Court “delivered on Thursday, March 26, 2009” be set aside.185

That “the electronic statement of account” be admitted as evidence186 According to Emmanuel, E., an Abuja based legal practitioner, the issue in contention from the point of view of the Justice was “that the document, i.e., the statement of account is a computer print-out, therefore, certification of the statement of account was inapplicable or irrelevant.”187

COMMENTARY

In Harris v Smith188 the court held that

…*N+o court could fail to notice the extent to which business today depends

on computer for a myriad of functions. Perhaps the greatest utility of a

computer … is its ability to store large quantities of information which may be

quickly retrieved on a selective basis. Assuming that properly functioning

computer equipment is used, once the reliability and trustworthiness of the

information put into the computer has been established, the computer

181

(2004) 3 NWLR (Pt 861) 516 182

(2001) 7 NWLR (Pt 713) 610 183

(1996) 2 NWLR (Pt 433) 688 at 710 paragraph B 184

Thisday (2009) Fani-Kayode – EFCC Appeals Ruling, AllAfrica Global Media [Online] Available from: http://allafrica.com/stories/200904010244.html [Accessed 07/01/2010] 185



Edet, E (2009) Electronic Evidence Thrashed in Nigerian Court Blogspot [online] Available from: http://www.ictlegal.blgspot.com/2009/03/electronic-evidence-thrashed-in-html [Accessed 21/01/2009] 188

[ 372 F.2d 806 (8th

Cir. 1967)]

http://allafrica.com/stories/200904010244.html



http://www.ictlegal.blgspot.com/2009/03/electronic-evidence-thrashed-in-html

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printouts should be received as evidence of the transactions covered by the

input.

In EFCC v Kayode189, the EFCC failed to establish the reliability and trustworthiness of

the computer or the information that was put in it, instead it established the

reliability and trustworthiness of the information retrieved from it and so the Judge

decided rightly.

AUTHENTICATION OF DOCUMENTARY EVIDENCE IN THE US – STATUTORY PROVISIONS Under the Federal Rules of Evidence, there is no specific rule demanding evidential records to be authentic, but this is implied. According to Paul, G. L. (2008):

There is however, a wealth of case law holding that documentary evidence must be authentic… (in) … United States v. Paulino190, (it was held that) documentary evidence must be authentic, authentication is a condition precedent to admissibility.191

Scheindlin, S.A and Capra, D.J (2009) concur:

The question of authenticity is discussed as one of conditional relevance: proferred evidence is only relevant if it is what the proponent says it is … The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claim.” Federal Rules of Evidence 901(a). See 5 Saltzburg, Martin & Capra, Federal Rules of Evidence Manual Section 901.02(1). E 901 – 5 (8th ed. 2002)”192

Thus, in American Law, to meet the requirements of authentication one must offer evidence “sufficient to support a finding that the [electronically stored information evidence+ in question is what its proponent claims.” Federal Rules of Evidence 901(a) Federal Rules of Evidence 901(b)(1) to (10) lists some ten (10) non-exhaustive examples of how authentication can be achieved. 189


[13 F. 3d 20, 22 (1st

Cir1994)] 191

Paul, GL (2008) Foundations of Digital Evidence Chicago: American Bar Association Publishing p39 192

Scheindlin, SA. AND Capra, DJ (2009), Electronic Discovery and Digital Evidence: Cases and Materials Minnesota: Thomson/ Reuters (West Academic Publishing) p 519 & 532

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Federal Rules of Evidence 902 treats self-authenticating documents listing twelve (12) categories of these. The documents listed in Federal Rules of Evidence 902 do not require extrinsic evidence of authenticity as a condition precedent to admissibility. In Lorraine v Markel193, Judge Grimm noted that: “*r+esolution of whether evidence is authentic calls for a factual determination by the jury and admissibility, therefore, is governed by the procedure set forth in Federal Rule of Evidence 104(b) ‘relating to matters of conditional relevance generally.”

SELF-AUTHENTICATING DOCUMENTS UNDER THE US FEDERAL RULES OF EVIDENCE According to Wikipedia:

A self-authenticating document, under the law of evidence in the United States, is any document that can be admitted into evidence at a trial without proof being submitted to support the claim that the document is what it appears to be.”194

The US Federal Rules of Evidence Rule 902 which treats self-authenticating documents is reproduced below: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. — A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. (2) Domestic public documents not under seal. — A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

193

[241 F.R. 534, 2007 WL 1300739 (D.Md.2007)] 194

Wikipedia (2010) Self-Authenticating Document, Wikipedia [online]. Available from: http://en.wikipedia.org/wiki/self-authenticating-document [Accessed: 04/02/2010]

http://en.wikipedia.org/wiki/self-authenticating-document

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(3) Foreign public documents. — A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. (4) Certified copies of public records. — A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. (5) Official publications. — Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers and periodicals. — Printed materials purporting to be newspapers or periodicals. (7) Trade inscriptions and the like. — Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents. — Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (9) Commercial paper and related documents. — Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

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(10) Presumptions under Acts of Congress. — Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. (11) Certified domestic records of regularly conducted activity. — The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record — (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. (12) Certified foreign records of regularly conducted activity. — In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record — (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

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According to Judge Grimm in Lorraine v Markel195, Rule 902(5), Rule 902(7) and Rule

902 (11) have been used in the courts to authenticate electronically stored

information.

However, the above three rules should not be considered the only means of

authenticating ESI given that “one court has held that any documents produced in

discovery are presumed to be authentic, that is, that a party cannot produce

information in discovery and then claim that the opposing party must prove

authenticity”. Furthermore, “Authentication can also be established by judicial

notice; by taking advantage of Federal Rules of Civil Procedure 36 (requesting

opposing party admit to genuineness of documents); via stipulation at a pretrial

conference pursuant to Federal Rule of Civil Procedure (FRCP) 16(c) (3), and pursuant

to FRCP 26, which gives a party 14 days to file objections to opposing party’s Rule 26

disclosures. Failure to do so waives all objections except under rules 402 and 403.”196

AUTHENTICATION OF NON-SELF AUTHENTICATING DOCUMENTS IN THE UNITED STATES Here is how West’s Encyclopedia of American Law looks at authentication:

In the law of evidence, the act of establishing a statute, record, or other document, or a certified copy of such an instrument as genuine and official so that it can be used in a lawsuit to prove an issue in dispute.197

As it relates to non-self authenticating documents, the most relevant sections of the US Federal Rules of Evidence are: 901 (b) (1),(2),(3),(4),(7),(8),(9) and (10) but with respect to electronically stored information (ESI) evidence, the most relevant sections are those reproduced below: (b) Illustrations. — By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with knowledge. — Testimony that a matter is what it is claimed to be.

195

[Lorraine v Markel 241 F.R. 534, 2007 WL 1300739 (D.Md.2007)] 196

LexisNexis [2007] Electronic Evidence 101, LexisNexis [online]. Available from: http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf [Accessed 04/02/2010] 197

The Gale Group, Inc (1998) Authentication, Answers.com [online] Available from: http://www.answers.com/topic/authentication [Accessed 05/02/10]


http://www.answers.com/topic/authentication

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(3) Comparison by trier or expert witness. — Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. — Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances (7) Public records or reports. — Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (9) Process or system. — Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Methods provided by statute or rule. — Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN UNITED STATE COURTS – LORRAINE v. MARKEL In Lorraine v Markel198, Judge Grimm summarized the role of authentication as follows:

In essence, determining whether ESI is authentic, and therefore relevant, is a two step process. First,“*b+efore admitting evidence for consideration by the jury, the district court must determine whether its proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” Then, “because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims.

Judge Grimm explains why specific steps as contained in his judgement have to be followed to admit ESI into evidence:

Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. Federal Rules of Civil Procedure 56 (e). This is unfortunate, because considering the significant costs associated with

198

[241 F.R. 534, 2007 WL 1300739 (D.Md.2007)]

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discovery of ESI, it makes little sense to go all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavours” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.199

In his ruling, he made it very clear that ESI would not be admitted into evidence without more simply because they were computer print-outs. To be admissible, ESI must meet the standards for admission under the Federal Rules of Evidence. In Lorraine v Markel200, the parties failed to authenticate the emails but merely attached them to motions as exhibits, as has been a common practice in civil litigation motion practice. Judge Grimm opined that

The inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation. If it is critical for the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied.201

Truss, JMM and Headley, TC (2007) commented on possible methods for authentication of ESI:

Because there is no one-size-fits-all approach for the authentication of ESI, counsel should look to Rules 901 and 902 for the least burdensome, but most reliable, method of authenticating a particular piece of ESI….even before addressing the potential methods of authentication set forth in Rules 901 and 902, counsel should explore other options afforded by the Federal Rules of Civil Procedure to ensure authentication of ESI, including asking the opposing party to stipulate to the authenticity of documents at the pre-trial conference pursuant to Federal Rule of Civil Procedure 16(c)(3); asking the opposition party to admit the “genuineness of any documents” pursuant to a properly served request for admission under Federal Rule of Civil Procedure 36; and making timely pretrial disclosures of documents and exhibits in accordance with Federal Rule of Civil

199

Lorraine v. Markel 241F.R.D.at 537-38; [2007 WL 1300739 (D.Md.2007)] 200

Lorraine v Markel 241F.R.D.at 537-38; [2007 WL 1300739 (D.Md.2007)] 201

Lorraine v Markel 241F.R.D.at 537-38; [2007 WL 1300739 (D.Md.2007)]

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Procedure 26(a)(3), thereby requiring the opposing party to file objections to such documents with 14 days – the failure to do so results in a waiver of all objections except relevance.202

AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN UNITED STATE COURTS – IN RE VINHNEE In Re Vinhnee203, Vinhnee did not discharge his credit card debts and American Express Travel Related Services, Inc set in motion steps to recover the money due to it. Unfortunately, Vinhnee did not make an appearance which meant that the case had to be heard and decided in his absence. At the trial court, when it became clear that the court would have to rely on the depositions of American Express to determine the case, the trial court sought to “assure the continuing accuracy of the records.” When American Express could not adequately authenticate its computerized business records, the court rejected the same but gave it the chance to cure the foundational defects in a post-trial submission. American Express failed to provide a proper authentication foundation on the second opportunity and so the trial court decided against it, but noted that it would have decided in its favour if it had succeeded in providing a proper authentication foundation. On appeal, the issue was whether the court erroneously refused to admit computer-generated records as not properly authenticated. The Appeal Court held that by virtue of FRE 104 the court acts as a gatekeeper on the admissibility of evidence. According to Judge Klein, C:

“*a+uthenticating a paperless electronic record, in principle, poses the same issue as for a paper record, the only difference being the format in which the record is maintained, one must demonstrate that the record that has been retrieved from the file, be it paper or electronic, is the same as the record that

202

Truss, JMM and Headley, TC (2007) What Good Is it If You Can’t Use it? – Admissibility and Authenticity of ESI. Business Torts Journal 15(1) pp1, 20, 21 203

[336 B.R. 437 (9th Cir. BAP 2005)]

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was originally placed into the file. Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proferred is the same as the document that was originally created…. *t+he paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be…the increasing complexity of ever-developing computer technology necessitates more precise focus.…what has, or may have, happened to the record in the interval between when it was placed in the files and the time of the trial.

In the light of the above analysis, it was held that the trial court’s decision was affirmed since the trial court acted within its rights in requesting for the establishment of a proper evidential foundation before admitting the computerized business records and did not abuse its discretion. COMMENTARY The trial court did not only fail to admit the computerized business records, but it provided assistance to American Express by referring its council to Prof. Imwinkelried’s treatise Evidentiary Foundations which gave American Express a chance to correct its error. The court also reproduced the 11 tests described in that treatise in relation to ESI

evidence:

The business uses a computer. The computer is reliable. The business has developed a procedure for inserting data into the computer. The procedure has built-in safeguards to ensure accuracy and identify errors. The business keeps the computer in a good state of repair. The witness had the computer readout certain data. The witness used the proper procedures to obtain the readout. The computer was in working order at the time the witness obtained the

readout. The witness recognizes the exhibit as the readout. The witness explains how he or she recognises the readout. If the readout contains strange symbols or terms, the witness explains the

meaning of the symbol or terms for the trier of fact.

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In the light of the above decision, the decision of the Federal High Court, Lagos was not out of order since the issue was that the EFCC failed to lay the proper authentication foundation. In the words of the learned Judge Klein, C:

There is no information regarding American Express’ computer policy and system control procedures, including control of access to the pertinent databases, control of access to the pertinent programs, recording and logging of changes to the data, backup practices, and audit procedures utilized to assure the continuing integrity of the records. All of these matters are pertinent to the accuracy of the computer in the retention and retrieval of the information at issue.204

AUTHENTICATION OF ELECTRONICALLY STORED INFORMATION (ESI) EVIDENCE IN UNITED STATE COURTS – UNITED STATES V TANK205 In United States v. Tank, the appellant objected to the government ESI evidence being admitted into evidence on the grounds of insufficient foundation because:

(1) The chat room logs were not complete (2) Undetectable “material alterations” such as changes in either the substance or

the name appearing in the chat room logs, could have been made by the prosecution witness.

The district court held that Tank’s objection went to the evidentiary weight of the logs rather than admissibility and allowed the logs into evidence. The appellate court reviewed the district court’s decision in the light of Federal Rules of Evidence 901(a) and observed that the government need only make a prima facie showing of authenticity, as the rule requires only that the court admit evidence if sufficient proof has been introduce so that a reasonable juror could find in favour of authenticity or identification. The government must also establish a connection between the proffered evidence and the defendant. The government made a prima facie showing of authenticity because it presented evidence sufficient to allow a reasonable juror to find that the chat room log printouts were authenticate. The government also established a connection between Tank and the chat room log printouts.

204

In Re Vinhnee [336 B. R. 437 (9th

Cir. BAP 2005)] 205

[200 F.3d 627 (9th

Cir.2000)]

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On the record before us, it is clear that the government made an adequate foundational showing of the relevance and the authenticity of the chat room log printouts.

COMMENTARY

(1) Authentication of ESI evidence is no different from non-ESI evidence

authentication. (2) The same standards apply. (United States v DeGeorgia206 and United States v.

Vela207)

206

[420 F.2d 889, 893 n.11 (9th

Cir. 1969)] 207

[673F. 2d 86, 90 (5th

Cir. 1982)]

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CHAPTER 5: CONCLUSION AND RECOMMENDATIONS

SUMMARY OF NIGERIAN CASES INVOLVING ESI EVIDENCE

In this work, a total of eight (8) cases cutting across all tiers of the Nigerian Judicial System having a bearing on the admissibility of electronically stored information (ESI) evidence have been considered. The cases are:

(1) Esso West Africa Inc v Oyegbola 1969 NMLR 194; NSCC 354-355 (Supreme Court) The law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer. In modern times reproduction or inscriptions on ledgers or other documents by mechanical process are common place and section 37 cannot therefore apply only to “books of account…so bound and the pages… not easily replaced. We think the ledger cards in this case had been wrongly rejected and they should have been admitted in evidence. We therefore, so rule.

(2) Yesufu v ACB (1976) ANLP (Pt. 1) 328 (Court of Appeal) Computer print-outs not admissible.

(3) Elizabeth Anyaebosi v R T Briscoe Nigeria Ltd (1987) 3 FWLR (Pt. 59) 84

(Supreme Court) Computer print-out admissible as secondary evidence.

(4) Unity Life and Insurance Co LTD v IBWA Ltd (2001) 7 NWLR (Pt.713) 610 (Supreme Court) Computer print-out admissible as secondary evidence.

(5) Nuba Commercial Farms Ltd v NAL Merchant Bank Ltd (2003) FWLR (Pt. 145) 661 (Court of Appeal) The admission in evidence by the court of 1st instance of computer print-out as secondary evidence of entries of a banker’s book was wrong because, among other things, the relevant provision of Section 97 of the Evidence Act do not contemplate information stored “other than in a book.”

(6) Trade Bank v Chami (2003) 13 NWLR (Pt.836) 158 (Court of Appeal) This section of the Evidence Act (supra) does not require the production of ‘books of account’ but makes entries in such books relevant for admissibility. Exhibit 4 is a mere entry in the computer or book of account. Although the law

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does not talk of “computer” and “computer print-outs” it is not….oblivious to or ignorant of modern business world and the technological advancement of the modern jet age. As far back as 1969, the Supreme Court in the case of Esso West Africa Inc. v. Oyegbola (1969) NMLR 194, 198 envisaged the need to extend the horizon of the section to include or cover computer which was virtually not in existence or at a very rudimentary stage at that time… On this authority the provisions of Section 38 covers, in my respectful opinion, also electronic process such as computer and the computer print-outs comprised in Exhibit 4 are admissible. (Pages 216, 217, Paragraphs E, C)

(7) UBA v SAFDU (2004) 3 NWLR (Pt.861) 516 (Court of Appeal) Computer print-outs of statement of account are only admissible subject to the fulfilment of the condition listed in Section 97(2)(e) Evidence Act LFN 2004.

(8) EFCC V FANI-KAYODE - ThisDay March 27, 2009 p 6 (Federal High Court)

Computer print-out of statement of account held inadmissible under Section 97(1)(h) and 97(2)(e) Evidence Act LFN 2004 , even if relevant to the proceedings, since the issue in contention is that the document, i.e., the statement of account is a computer print-out, therefore, certification of the statement of account was inapplicable or irrelevant.

The ruling in each of four of (4) of the eight (8) cases is in favour of the admissibility of electronically stored evidence under the current Evidence Act LFN 2004, while the ruling in each of the remaining four (4) of the cases is against Three (3) of the cases in favour are from the Supreme Court, one (1) from the Court of Appeal, while three (3) against are also from the Court of Appeal and the final case against is from the Federal High Court.

THE EVIDENCE ACT IS NOT GOOD ENOUGH!

In Chapter 1, the position that the Evidence Act LFN 2004 is not good enough was

canvassed.

The reasons for arriving at this position include the following:

According to Senator Akinyede, sponsor of the Bill for an Act to Amend the Evidence Act CAP E14 Laws of the Federation of Nigeria 2004, “Since the Evidence Act was enacted 64 years ago, apart from some minor amendments

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effected between 1948 and 1958 and another minor amendment in 1991, the Act has remained unchanged”208. None of the three minor amendments treated the issue of admissibility of electronically stored information (ESI) evidence.209

Considering that the Nigerian Evidence Act is senior to the American Federal Rules of Evidence (FRE) by 30 years and that between 1975 and date there have been several major amendments to the FRE while there have been just three minor amendments to the Evidence Act shows that the Evidence Act, in its current state, leaves much to be desired.210

The above position is supported by at least two Justices. According to Hon. Justice J.O.K. Oyewole in his paper “Cybercrime: Challenges before Judicial Officers:” “…there are no express provisions in the Nigerian Evidence Act to guide the Courts…”211 Honourable Justice Iyizoba put it this way: “… the Evidence Act [LFN 2004] as it is, never contemplated the admissibility of electronic evidence. This underscores the need for the amendment of our Evidence Act…”212

208 Ngex (2009) Senate to Amend Evidence Act to allow Electronic and computer Generated Materials as

evidence Ngex [Online] Available from : http://www.ngex.com/news/public/newsinfo.php?nid=8329 [Accessed 21/01/2010]

209 Miller,C. (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow Admissibility

of Electronic Evidence. Evidence Prof Blog [Online] Available: http://typepad.com/services/trackback/6a00d8341bfae553ef0120a5a47e7970b.com [Accessed 21/01/2010]

56 Miller,C. (2009) (2009) Analog Rules in a Digital Age: Nigeria Seeks to Amend its Evidence Act to Allow

Admissibility of Electronic Evidence. EvidenceProf Blog [Online] Available: http://typepad.com/services/trackback/6a00d8341bfae553ef0120a5a47e7970b.com [Accessed 21/01/2010]

211

Hon. Justice J.O.K. Oyewole, November 2009, “Cybercrime: Challenges before Judicial Officers”, Paper

presented at The 2009 All Nigeria Judges Conference, p 3


22/01/2010]

http://www.ngex.com/news/public/newsinfo.php?nid=8329




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According to Wikipedia, The Free Encyclopedia:

The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:

Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.

Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.

Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.

Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. In practice, by performing the construction the court can make sweeping changes in the operation of the law.213

The Nigerian Supreme Court has consistently relied on the liberal rule of statutory

interpretation to make electronically stored information (ESI) evidence admissible in

under the Evidence Act.

However, this work has repeatedly shown that the liberalism of the Supreme Court

while expedient in the circumstances will in the long run produce more problems

than it will solve since ESI evidence is very different in many respects from paper

evidence.

Sommer, P (1997) echoed the above sentiments in the following words: …a computer is not necessarily “just like” a filing cabinet and as a result computer “documents” may not be “just like” the paper equivalent. Again, it is not necessarily the case that computer errors are nearly always manifest in that the result is either no read-out or print-out of any kind or gross nonsense. Depending on circumstances, a computer print-out can look plausibly correct but nevertheless be misleading or be misinterpreted. Increasingly too, the courts are being presented with configuration, logging and other system files which would not normally be viewed by the ordinary computer user – indeed such a user may not even know of their existence – but which investigators

213

Wikipedia (2009) Statutory Interpreatation (online) Available from: http://en.wikipedia.org/wiki/Statutory_interpretation (Accessed March 11, 2010)

http://en.wikipedia.org/wiki/Statutory_interpretation

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and prosecutors are tendering as evidence of an accused’s activities or intentions.(emphasis mine) 214

Hence Rule 1001(3) in the United States, made “accurate reflection” an issue while the Section 8 (1) (b) of the UK Civil Evidence Act 1995 spoke of “the production of a copy of that document or a material part of it, authenticated in such manner as the court may approve.”

DEFINITION OF THE TERM “DOCUMENT”

Chapter 1 also treated the Definition of “Document” in the current Evidence Act

which is too narrow. However, Section 1 Evidence Act (Amendment) Bill 2009

promises to remedy the situation.

THE BEST EVIDENCE RULE AND ESI

In Chapter 2, which discussed the Best Evidence Rule and Electronically Stored

Information (ESI) Evidence, it was observed that:

… a rigid adherence to the best evidence rule is inappropriate in the context of the accuracy with which copies of originals may now be made …215

And that ESI presents a situation in which “multiple or even an infinite number of copies of electronic files”216 could all happen to be originals.

On the other hand, the premise of the use of the word “original” in the Evidence Act LFN 2004 is that there can only be one original.

Furthermore, since computer print-outs can be altered, the amendments to the Evidence Act should include:

Ordering the preservation of Electronically Stored Information (ESI) Evidence relevant to potential, threatened or pending litigation whenever it should be reasonably anticipated that litigation is imminent

Sanctions for the spoliation of ESI evidence

214

Sommer, P [1997] Digital Footprints: Assessing Computer Evidence PMsommer.com [online] Available from: http://www.pmsommer.com/CrimLR01.PDF [Accessed 02/02/2010] 215


Edition, London: Longman p269 216


http://www.pmsommer.com/CrimLR01.PDF

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Provisions to exclude from sanction, spoliation of ESI evidence made in good faith and without malicious or fraudulent intentions [Compare Rule 37 (e) FRCP]

Unless the Evidence Act LFN 2004 is amended to provide for the preservation of ESI evidence, the authenticity of ESI evidence intended to be admitted into evidence cannot be guaranteed, proven or disproved.

However, such provisions must go beyond blanket preservation orders to address issues such as the format of production, i.e., should ESI evidence be preserved in its native format? Or in the form in which it is ordinarily maintained? Or in a reasonably usable form? [Compare Rule 34(2) FRCP]

In the UK, by virtue of the provisions of Section 8 Civil Evidence Act 1995, there is no distinction between “original” and “copies”.

It would seem that as far as ESI is concerned, “original” in the sense that led to the rule applies no more. One wonders then, its continued retention in Nigerian legislation. Interestingly, there is an attempt by the National Assembly to amend the law as it relates to the best evidence rule; however, the intended amendment retains the concept of “original” which is like attempting to move forward but failing to make a clean break from the past.

Interestingly, ESI evidence might actually make it easier to find the smoking gun since “sophisticated technology exists to enable legal teams to filter electronic documents for relevance and significantly reduce their document collection to a more manageable review set.”217

Covad v Revonet218 involved a breach of contract in which misappropriation and conversion of confidential, proprietary and trade secret information was alleged. Were the relevant evidence to be produced in paper form, it would have meant the printing of 35,000 pages of email! However, the court decided that the responsive documents would be produced in electronic format.

However, given the emphasis on computer printout by the definition of “original” in Section 4 of the Evidence Act (Amendment) Bill 2009 and the wordings of Section 234 of the same bill, the unfortunate scenario in the above case will sooner or later rear its ugly head in litigation in Nigeria. But such a scenario can be avoided if the proposed legislation can be amended to permit the parties to decide the form of production as obtains under the American system. In that regard, Rule 34 of the Federal Rules of Civil Procedure should be most

217

Taylor, M (2006) CPR r31, Relevancy & ESI, IT LAW TODAY 14 (2) p 5 218

[2008 WL 5377698 (D.D.C Dev. 24, ]

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helpful since they provide that the requesting party can specify the form in which the ESI should be produced, and if that were not done, then that the ESI should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form.219 To be comprehensive, amendments to the Evidence Act must also treat metadata which Judge Shira Scheindlin describes as:

… the electronic equivalent of DNA, ballistics and fingerprint evidence, with a comparable power to exonerate and incriminate. Metadata sheds light on the context, authenticity, reliability and dissemination of electronic evidence, as well as providing clues to human behaviour. All sorts of metadata can be found in many locations. Some is crucial evidence; some is digital clutter. But because every active file stored on a computer has some associated metadata, it’s never a question of whether there’s metadata, but what kinds of metadata exist, where it resides and whether its potential relevance demands preservation and production…”220

Of course, hash values can be used to establish the integrity of ESI evidence. However, hash values can only be used to establish the integrity of ESI evidence only if the electronic file is available, hence the need to include provisions for the preservation of ESI evidence in the proposed amendments to the Evidence Act.

In Armstrong v Executive Office of the President it was held that “without the retention of a complete digital copy of an electronic document such as an e-mail message, “essential transmittal relevant to a fuller understanding of the context and import of an electronic communication will simply vanish. (emphasis mine)”221

If adopted by Nigerian courts, the 5 step analysis proposed by Judge Grimm in Lorraine v Markel222 will ensure that no mistake of treating all ESI equally, will be made, when in practice and in law, there is a distinction between computer-stored and computer-generated electronically stored information (ESI) evidence. The five step analysis is reproduced below:

i. Is the ESI relevant? ii. If relevant, is it authentic?

219

Taylor, M (2006) CPR r31, Relevancy & ESI, IT LAW TODAY 14 (2) p 5. In this article, the author, a legal consultant at electronic and paper-based evidence services provider Kroll Ontrack observed that “sophisticated technology exists to enable legal teams to filter electronic documents for relevance and significantly reduce their document collection to a more manageable review set.” 220

Judge Shira A. Sheindlin, S.D.N.Y FAQ’s of E-Discovery Federal Judges Association Newsletter November 29, 2006 [online] Available from: http://www.fjc.gov/public/pdf.nsf/lookup/FAQEDisc.pdf/$file/FAQEDisc.pdf [Accessed 02/01/2009] Compare the ruling in Williams V Sprint/United Management Co [230 F.R.D 640 (D.Kan.2003)] 221

[810 F. Supp. 335 (D.D.C. 1993)] 222

[241 F.R.D at 538 (D. Md. 2007)]

http://www.fjc.gov/public/pdf.nsf/lookup/FAQEDisc.pdf/$file/FAQEDisc.pdf

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iii. If the ESI is offered for its substantive truth, is it hearsay? And if so, is it covered by an applicable exception?

iv. Is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI?

v. Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice … such that it should be excluded despite its relevance?223

PROPOSED AMENDMENTS TO THE BEST EVIDENCE RULE

The Evidence Act (Amendment) Bill 2009 makes provisions for the amendment of the

Best Evidence Rule in Sections 232(1), 232(2), 234(1), 234(2).

Sadly, however, in the light of technological developments and the modifications to

the best evidence rule in the UK (Section 8 Civil Evidence Act 1995) which mandates

non-discrimination between copies and originals; the proposed modification in

California in the USA and the emphasis in Nigeria on “original” prescribed in Section

4 of the Evidence Act (Amendment) Bill 2009, the amendments do not seem to go far

enough, it is submitted!

HEARSAY EVIDENCE RULE AND ESI EVIDENCE

Judge Grimm also proposed 5 separate questions that must be answered if the court

is to properly analyze hearsay issues in relation to ESI evidence. The five questions

are:

1. Does the evidence constitute a statement?

2. Was the statement made by a declarant?

3. Is the statement being offered to prove the truth of its contents?

4. Is the statement excluded from the definition of hearsay?

5. If the statement is hearsay, is it covered by one of the exceptions? 224

223

Lorraine v Markel [241 F.R.D at 538 (D. Md. 2007)] 224

Lorraine v Markel [241 F.R.D at 538 (D. Md. 2007)]

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PROPOSED AMENDMENTS TO THE HEARSAY EVIDENCE RULE

The Evidence Act (Amendment) Bill 2009 does not offer any modifications to the

hearsay evidence rule. It is submitted that Nigeria should take a cue from the UK

which has abolished the hearsay evidence rule in Section 1 Civil Evidence Act 1995.

The Evidence Act (Amendment) Bill 2009 fails to make a distinction between hearsay-

ESI and non-hearsay-ESI.

Both the United States [in FRE 803(6) and FRE 803(8) respectively] and the United

Kingdom [in Section 9 Civil Evidence Act 1995] have public and business records

exceptions to the hearsay evidence rule.

AUTHENTICATION AND ESI EVIDENCE

In Chapter Four, the analysis of authentication in relation to electronically stored information (ESI) evidence led to raising the following questions:

What is the identity of the person(s) behind the birth/creation of the ESI record?

Has the state of the ESI record remained static or inert over time? When was the ESI record created? Was the identity of the person connected/associated with the ESI

record at the point of creation/birth or subsequently? Is the connection/association between the object and the identity of its

creator alterable or unalterable? If alterable, can such alterations be detected?

Does the passage of time, without any sort of external influence, change the ESI record?

Can the ESI record be associated with a place, e.g., Abuja, Nigeria or a

thing e.g., an Internet Protocol address or cell phone number? Is the

association trustworthy? Or can the association be

forged/manoeuvred/doctored?

The answers to these questions are important because unlike paper evidence, ESI

evidence is very volatile.

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AUTHENTICATION OF DOCUMENTARY EVIDENCE IN NIGERIA – SECTIONS OF THE

EVIDENCE ACT THAT NEED TO BE MODIFIED

Section 100 Evidence Act LFN 2004 treats authentication via signature i.e., signing and authentication via handwriting. Simeon Olusoji Kuforiji & Another v. V.Y.B (Nigeria) Ltd225. This section as currently worded does not and cannot be made to apply to ESI evidence of any kind by any stretch of the imagination.226 In general, ESI is not handwritten (an example of handwritten ESI would be using a stylus or tablet pen). ESI can be signed as in the case of digital signatures. [See Section 240 of the Evidence Act (Amendment) Bill 2009] It was the application of principles similar to those contained in Section 101(1) Evidence Act LFN 2004 in the Federal Rules of Evidence 901(a) that led to a conviction in United States v. Tank.227 This sub-section as currently worded is applicable to ESI. The wording of Section 101(2) Evidence Act LFN 2004 makes it applicable to ESI provided that the definition of “document” in Section 2(1) Evidence Act LFN 2004 includes ESI. (See also Section 3 of the Evidence Act (Amendment) Bill 2009.) Section 102(1) Evidence Act LFN 2004 is anti-ESI as currently worded. But see Section 240 Evidence Act (Amendment) Bill 2009 According to Section 103(1) Evidence Act LFN 2004, oral evidence can authenticate a non self-authenticating document. See Whyman v. Garth228, Bowman v. Hodgson229 and Coles v. Coles230. At least one attesting witness will do unless none is available. See R v. Harringworth (Inhabitants).231 This Section appears to be Pro-ESI. Section 104 Evidence Act LFN 2004 Section appears to be Pro-ESI. To authenticate non self-authenticating documents, Section 105(1) Evidence Act LFN 2004 provides for

(1) Calling the person who executed it (2) Calling the person who made the writing as a witness

225

(1981) 6-7 SC 40 226

Of course, it can be argued that using a digital stylus with a pen-enabled tablet PC which accepts writing directly to the screen (and saving the same to the disk) means that ESI can be handwritten. Ultimately, this is an issue which the judiciary will have to settle. But see http://en.wikipedia.org/wiki/Microsoft_OneNote 227

[200 F.3d 627(9th

Cir. 2000)] 228

(1858) Ex 803; 153 ER 1578 229

(1867) L.R. 1 P & D. 362 230

(1866) L.R. 1 P. & D. 70 231

(1815) 4 M. & S. 350; 105 ER 863

http://en.wikipedia.org/wiki/Microsoft_OneNote

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The only exceptions are where secondary evidence is permissible (Section 97 Evidence Act LFN 2004) and with respect to ancient documents (Section 123 Evidence Act LFN 2004). This section is anti-ESI. Section 106 Evidence Act LFN 2004 is Pro-ESI. See Bowman v. Hodgson232, Pilkington v. Gray233 Circumstantial evidence can authenticate ESI. As a whole, Section 108 Evidence Act LFN 2004 is anti-ESI. In Lorraine v Markel234, Judge Grimm summarized the role of authentication as follows:

In essence, determining whether ESI is authentic, and therefore relevant, is a two step process. First,“*b+efore admitting evidence for consideration by the jury, the district court must determine whether its proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” Then, “because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims.

AUTHENTICATION – THE WAY FORWARD IN RESPECT OF ESI

Sections 100 to 108 Evidence Act LFN 2004 deal with the authentication of documentary evidence. However, many of its provisions as noted above are anti-ESI, e.g., Sections 100, 102(1), 105(1), 108(1), 108(2) and 108(3). The United States Federal Rules of Evidence 901(b)(1) to (10) lists some 10 non-exhaustive examples of how authentication can be achieved, while case law such as Lorraine v Markel235 provides additional examples. While Sections 232(1), 232(2) and 233 Evidence Act (Amendment) Bill 2009 provide for the authentication of ESI, they do not provide how it is to be achieved. This shortcoming calls for redress. It may be recalled that this was the problem in EFCC v Fani-Kayode236 as the following questions proposed by Paul, G.L. (2008)237, could not be answered:

232

(1867) LRIP & D 362 233

(1989) AC 401 234

[241 F.R. 534, 2007 WL 1300739 (D.Md.2007)] 235

[241 F.R.D 534, 546-47 (D. Md. 2007)] 236


Paul, GL (2008) Foundations of Digital Evidence, Chicago: American Bar Association p131 - 133

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What do we know about the file before it was printed?

Who had access to it?

Does its custodian even know where it came from?

Is there a trail or history of its evolution?

Was it edited?

When was it edited?

Who edited it?

Does the company that possesses the record have any information about these facts?

If it does not, how can it know its records are authentic?

“ELECTRONICALLY STORED INFORMATION” (ESI) – MORE THAN JUST

COMPUTER PRINT-OUTS

It is also important to note that so far the debates on the deficiencies of the Evidence Act LFN 2004 have centred on computer printouts. However, it needs to be pointed out that this is rather short-sighted, as there is more to Electronically Stored Information (ESI) evidence than just computer printouts. The Electronic Discover Working Group of the Conference of Chief Justices (of the United States) uses the following definition:

1(A) Electronically Stored Information is any information created, stored, or best utilized with computer technology of any type. It includes but is not limited to data; word-processing documents; spreadsheets; presentation documents; graphics; animations; images; e-mail and instant messages(including attachments); audio, video and audiovisual recordings; voicemail stored on databases; networks; computers and computer systems; servers; archives; backup or disaster recovery systems; discs, CDs, diskettes, drives, tapes, cartridges and other storage media; printers; the Internet; personal digital assistants; handheld wireless devices; cellular telephones; pagers; fax machines; and voicemail systems.

(B) Accessible information is electronically-stored information that is easily retrievable in the ordinary course of business.238

The key point to note from the above definition is that ESI covers all forms of electronically stored information on a wide variety of media and equipment. It is not limited to email and Instant Messages239 and computer printouts. (Additions mine)

238 (Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Approved

August 2006)

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Section 4 of the Evidence Act (Amendment) Bill 2009 appears to solve this problem by amending the Interpretation Section of the Principal Act to include “data” and “electronic record” which it goes on to define as “representations, in any form, of information or concepts” and “data that is recorded or stored on any medium in or by a computer system, mobile phones or other similar device and that can be read or perceived by a person or by a computer system or other similar device. It includes a display, printout or other output of that data” respectively.

FINAL OBSERVATIONS

Another observation that needs to be made is that neither the Evidence Act LFN 2004 nor the Evidence Act (Amendment) Bill 2009 has made a distinction between the two types of Electronically Stored Information (ESI) Evidence, i.e., computer-generated records, e.g., log files and human-generated but computer stored records, e.g., a spreadsheet created by an end-user. It is therefore submitted that although the Evidence Act (Amendment) Bill 2009 is a

good start, it is still a far cry from achieving the desired object of bringing Nigeria’s

Evidence Law in line with current realities, and unless the highlighted shortcomings

are rectified, if the current Evidence Act (Amendment) Bill 2009 is passed into law as

is, it itself will sooner than later have to amended.

239

AXS-ONE (2007), A Practical Guide to the Litigation Readiness of Electronically Stored Information (ESI) New Jersey: AXS-ONE page 9