Ajileye’s Electronic Evidence – A pioneering effort on admissibility of electronic evidence in Nigeria
jBOOK: ELECTRONIC EVIDENCE– Review
Author: Alaba Omolaye-Ajileye J.
Revised Edition: 2019
Publisher: Jurist Publications Series
Reviewers: Adedayo Adedeji Esq and Chinelo Ogbozor Esq
Prior to the enactment of the Evidence Act 2011, there was no precise clarification as to the status of electronic evidence owing to the diverse and discordant interpretations given by the Courts on the subject. As such, it appears the enactment of the Evidence Act 2011 has attempted to correct some of the difficulties that the admissibility of electronically generated evidence previously encountered in Nigerian Courts.
The book Electronic Evidence is both an academic and a practical literature on the Law of Evidence with special emphasis on the recently developing area of electronic evidence under the S. 84 regime of the Evidence Act 2011. This publication is the second production by the author whose first book on the subject titled “A Guide to Admissibility of Electronic Evidence” was released in 2016. Commendably, within a space of two years, the author has released the first edition and now, a revised edition. Consequently, the expeditious reaction of the author whose profile at pages xv-xviii reveals him as a serving Judicial Officer of the High Court bench of Kogi State is sterling. This literature presently stands as the only publication in terms of a book in the area of electronic evidence in Nigeria. This book is an excellent resource to students, legal practitioners, judges and law enthusiasts.
THE READER’S GUIDE
Electronic Evidence is divided into 4 Parts and 23 Chapters. In part 1 comprising Chapters 1 to 5, the author educates the reader on the basic terms and concepts in the law of evidence thereby equipping him with foundational knowledge ahead of the crux of the subject. This pattern of writing is admirable considering that not every reader may have a grasp of the basic concepts of the Law of Evidence and electronic evidence. Therefore, while teachers and practitioners may find this part of the book refreshing, starters will find its contents a friendly introduction into the world of Law of Evidence.
Part II, comprising of Chapters 6 to 15 is a discourse on S. 84, Evidence Act 2011. This part of the text affords the reader a deeply researched analysis on the context and interpretation of the extant law as it relates to electronic evidence in Nigeria as well as extensive research of foreign law on the subject matter. The treatment of the various sub sections of S. 84 of the Evidence Act 2011 is also instructive. With the aid of judicial authorities, the text provides clarity to the reader regarding the conjunctive and disjunctive use of words like ‘and’ and ‘or’ within the context of Section 84 Evidence Act 2011. It is also discovered that justice is done to seeming areas of conflict on the presentation of electronic evidence in court, particularly, on whether the production of a certificate of authentication can replace oral evidence. The aforesaid poser is easily resolved with the analysis of the following cases: Dickson v Sylva  8 NWLR (Pt.1567) 169; Kubor v Dickson  4 NWLR (Pt. 1345) 534; Daudu v FRN  LPELR- SC; and many other authorities explain with ease the seemingly complicated interpretation of S. 84 of the Evidence Act. Significantly, the author posits that mere tendering of a certificate of authentication, without more, will not satisfy the conditions stipulated under Section 84. He predicates his position on a well-established principle of law that a party relying on a document in proof of his case ,must specifically relate such document to his case by oral evidence.
The text further presents succinct analysis on the purpose and nature of authentication required for the presentation of electronic evidence in a Nigerian court vis-à-vis applicable practice in foreign jurisdictions. It identifies the lacunae in the law and proffers recommendations towards a purposeful approach in interpreting the enactment. Notable also is the analysis on the application or exclusion of other sections of the Evidence Act to electronic evidence in terms of relevance and overall admissibility. The reader is therefore not only equipped with knowledge of the general rules and principles on the subject matter but also with adequate understanding of the areas of conflict with other rules. Worthy of note also is the fact that the point is made that an objection cannot be sustained under Section 83 of the Evidence Act 2011 in relation to electronic evidence on the ground that the maker has not been called as a witness. This is premised on the fact that section 84 already recognises the computer as the producer of the document. The author also makes it clear that the fact that a document was electronically produced does not exclude it from compliance with the required certification mandated by Section 104 of the Evidence Act.
Part III of Electronic Evidence comprising of Chapters 16 to 23, is dedicated to a review of the nature and admissibility of specific forms of electronic evidence. In this part of the text, emphasis is placed on E-mails, Short Messages Services; Tapes and Video Recordings; Digital Photographs; Internet and Social Media Posts; Automated Teller Machines; INEC Smart Card Reader. The important revelation in the 8 Chapters constituting this part is that there is no uniform pattern of admissibility for all electronically generated evidence as the author asserts that there is no single approach to authentication. The text therefore educates the reader on the slim but material areas of pre-trial preparation for the use of specific forms of electronic evidence.
Prior to the enactment of the Evidence Act 2011, admissibility of photographs has generated a lot of controversy as to whether photographs printed out from a digital camera amounts to primary evidence and whether memory card contained in a digital camera should be tendered with the photographs. This excellent piece of work has succinctly explained that the photograph itself, according to the author, is classified as the primary evidence for purposes of admissibility.
The final part of the book is dedicated to contributions by other authors on Electronic Evidence. This part of the book also contains judicial authorities on the subject. This enables readers to diversify their thoughts on the strength of other independent academic materials where further judicial authorities are discussed.
The author’s language is simple and easily comprehensible. This is one of the few law books that is easily read without the aid of a dictionary. The intention of the author to expand readership beyond lawyers and judges is conspicuous from the language of the text, which the writer of the Foreword, Hon. Justice C. C. Nweze, JSC., describes as ‘arresting’. This is further evidenced by the pattern of writing which is serially arranged from the basics to the general rules, then to the special rules. The arrangement of the table of contents is also a notable guide to the reader who reads the book in search of urgent answers on specific areas.
Electronic Evidence is written from the progressive/liberal approach of interpretation. This can be easily gathered from the recommendations and conclusions in the text. Therefore, a conservative thinker will find in the text areas and hints for joinder of issues. From the style of writing one can infer that the author places a lot of emphasis on the need for matters to be dealt with on their merit and not on the altar of technicalities or unfounded objections to the admissibility of documents particularly as it relates to electronic evidence. A conservative thinker will surely find an axe to grind with His Lordship’s proposition and disposition towards a liberal approach to interpretation of Section 84.
Electronic Evidence is well researched and detailed. The purposeful style of writing takes the text beyond the wall of an academic piece into the realm of an advisory guide for everyday computer related activity including trials, legislative proceedings and general public administration. However, the author’s apparent desire to deliver the message of the text seemed to have resulted in a prolonged analysis. The first part of the book could be subsumed into 3 chapters or less in a more summarised format. In the second part of the book Chapter Seven should have been subsumed in Chapter 10 and discussed before delving into Chapter Eight that deals with the analytical framework of Section 84 of the Evidence Act. It is our view that Chapter five would have come before Chapter four. Chapter four discusses electronic signature while Chapter five deals with meaning of documents. For better comprehension the meaning of documents should have been first discussed before delving into the issue of electronic signature which to a large extent constitute issues related to electronic evidence, which is more specific.
On the whole, the book is a good read and great pioneering effort as it addresses most of the pertinent issues relating to admissibility of electronic evidence under the Evidence Act 2011.The identified areas of improvement notwithstanding, the book is acknowledged as the student’s guide, the public officer’s counsellor, the judge’s reference and the legal practitioner’s handbook. Being a pioneer literature on electronic evidence in Nigeria, it sets a speedy and remarkable pace for subsequent contributions on the subject. It is suggested that including a copy of the Evidence Act 2011 into the appendix of the book for ease of reference will be of tremendous assistance. All said, commendations regarding the book are deserving and are hereby accorded.
Adedayo Adedeji Esq & Chinelo Ogbozor Esq
J .B. Daudu & Co
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