Impact of Supreme Court’s decision on development of e-commerce in Nigeria: Issues and prospects
We now live in an electronic age where everyday transactions are conducted on the platform of electronic devices. In the event of dispute, parties are bound to rely on electronic evidence.
This reality orchestrated the long and vociferous clamor for a wholesome amendment of the 2004 Evidence Act. It was thus a welcome development when the Evidence Act was amended in 2011.
This is a laudable development in Nigeria’s legal and commercial jurisprudence in view of global advancement in information and communication technology.
Hitherto, admissibility of electronic evidence had been controversial due to the absence of specific provisions in the repealed Act, and although even within the purview of the limited provisions of the repealed Act, the Supreme Court had long held in the case of Esso W.A. v. Oyegbola (1969) NMLR 194 that computer print-outs were admissible. Curiously, this uncertainty continues to pervade the Nigeria legal system notwithstanding that this decision of the Supreme Court had also been followed in a few other cases all decided under the provisions of the repealed Act.
Instructively, the cardinal codifications in the Evidence Act 2011 are the provisions regarding the concept of document and the admissibility of electronic evidence in sections 84, 258 and 34(1)(b). These provisions received judicial imprimatur in the case of Kubor v Dickon – the case under review.
Without a doubt, this will increase the confidence and faith of the international business community in the ability of the Nigerian legal system to properly deal with legal issues arising from their commercial transactions which are mostly conducted by electronic technology.
Lawyers who handle maritime matters, energy, aviation and even oil and gas, for example, will tell you how relieved they and their clients are by these provisions, as virtually all of their transactions are electronically-based.
The focus of this work therefore is to examine the case of Kubor v Dickson and the salient provisions of the Act relating to admissibility of electronic evidence vis-à-vis the concept and development of e-commerce in Nigeria.
Synopsis of the Case:
This is an election petition matter. The Appellants challenged the election and return of the 1st Respondent as the Governor of Bayelsa State in the February 11, 2012 governorship election in that state. They tendered from the Bar a printout of the online version of the Punch Newspaper and another document from the website of the Independent National Electoral Commission (INEC), the 3rd Respondent in the appeal.
While the electronic version of The Punch Newspaper was admitted and marked Exhibit ”D”, the document from INEC’s website was admitted and marked Exhibit “L”. Sadly, the Appellants did not satisfy the conditions laid down in section 84(2) of the Evidence Act with respect to the admissibility of electronic evidence.
As expected, the matter went on appeal and one of the contentions was that since Exhibits “D” and “L” were public documents, only certified copies thereof were admissible in evidence; and that in any case, the documents having been tendered from the Bar without the foundational conditions set out in section 84(2) of the evidence Act being satisfied, both documents were inadmissible in evidence.
The Supreme Court agreed totally with the above submissions. In the lead judgment the court stated that:
“There is no evidence on record to show that the appellants in tendering exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under section 84 of the Evidence Act, 2011. No wonder therefore that the lower court held at page 838 of the record thus:-
‘A party that seeks to tender in evidence computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under section 84(2) of the Evidence Act 2011.’
I agree entirely with the above conclusion. Since the appellants never fulfilled the pre-condition laid down by law, Exhibits “D” and “L” were inadmissible as computer generated evidence.”
Concurring, however, Ogunbiyi, JSC reasoned that the electronically generated documents were in the nature secondary evidence. He concluded that both documents being public documents needed to have been certified before being tendered in evidence.
The above decision of the Nigerian Supreme Court underscores two vital points. First, it recognizes and endorses electronic evidence in Nigeria. Second, it re-iterates the condition for admissibility of electronic evidence.
From the above case, in determining the admissibility of electronic evidence, the court has to look beyond the general conditions for admissibility of evidence in civil and criminal trials.
In other words, the court must resort to the provisions of section 84 of the Act.
Section 84(1) of the Act is to the effect that in any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in section 84 (2) of the Act are satisfied.
Stated more simply, the four (4) conditions for admissibility of a computer generated evidence under Section 84(2) are:
•That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
•That during that period of regular use, information of the kind contained in the document or statement was supplied to the computer;
•That the computer was operating properly during that period of regular use; and
•That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.
Furthermore, Section 84(4) requires that the party who seeks to tender a computer generated statement or document shall file a certificate:
• Identifying the document or statement,
• Describing the manner of its production,
• Stating the particulars of the device used in the production of the document.
• The Certificate shall be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities.
It is note-worthy that the definition of ‘Document’ in Section 258(1)(d) includes ‘any device by means of which information is recorded, stored or retrievable including computer output.’ Section 258 also defines a computer to mean “any device for storing and processing information”.
• Olushola Abiloye is a legal practitioner with Messrs Adepetun, Caxton-Martins, Agbor & Segun (ACAS-LAW) in Lagos.