Serialisation of the Preliminary Pages of the book: “A Compendium of Cases on Electronic Evidence” – Editor’s Commentaries – Part 1

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                                                    EDITOR’S COMMENTARIES


  1. Preamble


My first work on electronic evidencewas published in 2010[1]. Over the past ten years, I have given considerable attention to the study of electronic evidence in Nigeria and other jurisdictions, notably, the United States of America, United Kingdom, India and Singapore. Until recently, very few reported cases were readily available in Nigeria on the subject of electronic evidence. The paucity of reported decisions on the subject then was due to its novelty to the Nigerian jurisprudence. The enactment of the Evidence Act, 2011, however, changed the story. There now exists, a plethora of judicial authorities on the subject of electronic evidence found in different kinds of law reports.


  1. Introduction

Before the enactment of the Evidence Act 2011, issues concerning admissibility of documents generated from electronic devices were highly contentious. Opinions were also sharply divided amongst the superior courts on such issues. One of the dominant contentions centred on the question as to whether or not the Evidence Act, as it was then constituted, could accommodate the admissibility of electronic evidence in the absence of a clear provision for its admissibility. With the benefit of hindsight, the courts’ treatment of issues of admissibility of electronic evidence in the past can conveniently be divided into two schools of thought: (a) conservative school and (b) liberal school.


To the conservatives, the provisions of the old Evidence Act[2] must be strictly followed to the letters. Accordingly, electronically-generated documents tendered before them were often rejected because the old Evidence Act did not recognise them. Courts that belonged to this school of thought insisted on the amendment of the Evidence Act to render such electronically-generated evidence admissible. It did not matter that electronic revolution had reached Nigeria then and that Nigeria was inexorably growing as part of the globalisation phenomenon. Computer printouts, statement of accounts, emails, video compact discs, tape recordings and other e-documents were regularly rejected by the courts. They waited for the National Assembly to amend the law.[3]

On the other hand, there were the liberals. Courts in this category saw beyond the letters of the law. They were steadfast enough to shift from the prevailing paradigm. They adopted proactive attitude towards interpretation of the relevant provisions of the old Evidence Act. They saw good reasons for supporting admissibility of computerised documents and proceeded to admit them, even in the absence of clear legislative provisions.[4]


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  1. Enactment of Section 84 of the Evidence Act

In 2011, the 6th National Assembly enacted the Evidence Act, 2011. Section 84(1) of the Act categorically provides for admissibility of “a statement contained in a document produced by a computer”. Section 84(2) specifies four conditions to be fulfilled to render electronically-generated evidence admissible, while Section 84(4) mandates the presentation of a certificate of authentication. Since 2011, courts have been pronouncing on issues on admissibility of electronic evidence and expanding the scope of understanding of this new class of evidence. The large volume of cases we have on the subject of electronic evidence today testifies to the vibrancy, expertise and articulacy of Nigerian lawyers and the erudition, proficiency and dexterity of Nigerian Judges.


  1. Kubor& Anor. v. Dickson &Ors. (2012) – A trail blazer.

It is interesting to note, as it was in the old dispensation, when the Supreme Court of Nigeria charted the progressive course for admissibility of electronic evidence in the pre-2011 era, through its landmark pronouncement in Esso West Africa Inc. v. Oyebola (1969)[5], the decision of the apex court in Kubor& Anor. v. Dickson & Anor[6] blazed a trail on issues of admissibility of electronic evidence under Section 84 of the Evidence Act, 2011. The court made a pronouncement that paved way for a better understanding of Section 84. It stated thus:

A party that seeks to tender in evidence a 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.[7]

The above pronouncement continues to resonate powerfully throughout all courts in Nigeria. It has provided a standard by which reference is often made to emphasise the need for a party to lay proper foundation in fulfilling the conditions stipulated under Section 84(2) of the Evidence Act, which the apex court eminently described as “pre-conditions laid down by law.”[8]Kubor v. Dickson also stresses that where the pre-conditions are not fulfilled, a computer-generated document is inadmissible.[9]

It is important to point out here that computer-generated documents involved in Kubor& Anor. v. Dickson &Ors[10] were Exhibits ‘D’ and ‘L’, Internet printouts of Punch newspaper and list of candidates posted on INEC’s websites respectively. Emeka Arinze Esq, a certified digital forensic attorney, in his book: Digital Evidence & eDiscovery Law Practice in Nigeria (2018)[11] evaluates the treatment of Exhibits ‘D’ and ‘L’ by the Supreme Court as secondary evidence and public documents under Sections 90 and 102 of the Evidence Act respectively and holds the view that:

There is no doubt whatsoever, that exhibits ‘D’ and ‘L’ are electronic documents and, therefore, subject only and governed by section 84 of the Evidence Act. They are not in any way implicated by sections 90 and 102 as contended by the Supreme Court.[12]

In addressing the irrelevance or inappropriateness of objections as to the character or classification of electronically-generated documents as “primary”, “original” “secondary” or “hearsay” evidence, it is opined in Electronic Evidence (2019)[13]as follows:

Now, it should be duly emphasised that under Section 84, these objections have been rendered trifling and frivolous as the said section appears to have blotted out stereotyped distinctions between primary, original, secondary or hearsay evidence, in so far as the point in issue relates to admissibility of computer generated evidence under that section. Section 84 does not recognise the existence of any dichotomy in the nature and character of electronically generated documentary evidence as to classify it as ‘primary’, ‘original’ or ‘secondary’ evidence. It only recognises “a statement contained in a document produced by a computer.” In addition, section 84 does not as well require the production of original of electronic document. Section 84 is clearly in contradistinction to Section 88 which requires the production of original documents.[14]

It should also be reiterated, Section 84(1) stipulates that in any proceeding 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 shown that certain conditions are fulfilled.[15]In UBN PLC. v. Agbotaen& Anor.[16], the Court of Appeal held that whenever a statement of account or electronic ledger is to be tendered, either in its original form or as secondary evidence, it is required that it must satisfy the conditions prescribed under section 84.


  1. Public documents in Kubor v. Dickson

Kubor& Anor v. Dickson &Ors[17] also raises some fundamental questions relating to public documents: What is a public document within the context or framework of electronic evidence? Can an Internet printout of an official document from a private or personal computer of an individual or a cybercafe be treated as a public document within the meaning of the concept under Section 102 of the Evidence Act, 2011? As stated earlier, Exhibit ‘D’ was an Internet printout of the online Punch newspaper of 13th February, 2012 where scores of some of the candidates at the Bayelsa state Governorship election were published. Similarly, Exhibit ‘L’ was a computer-generated document allegedly printed out from the website of INEC (the 3rd respondent) showing the list of qualified candidates published by INEC for the Bayelsa state Governorship election of 11th February, 2012. Would the National Library have accepted Exhibit ‘D’ as a copy of a newspaper in its custody for its officer to certify it? In the same vein, would INEC have accepted Exhibit ‘L’ as its authentic document and be ready to certify same? Can any of these public institutions be compelled to certify documents that did not emanate from its custody? These are crucial issue that may require the intervention of the Supreme Court in the nearest future. When this ultimately happens, it should be noted, the overriding consideration for admissibility of electronically-generated evidence is the prescription of the law under Section 84(1) that simply identifies such a document as: a statement contained in a document produced by a compute”, without any further categorisation.






[1] Omolaye-Ajileye (2010) Admissibility of Electronic Evidence: The Journey So Far.

[2]Evidence Act, Cap E14 Laws of Federation of Nigeria, 2004. It was enacted by the colonial administration but came into force in 1945. The Act witnessed minor amendments in 1948, 1958 and 1991 but remained substantially the same till its repeal in 2011.

[3]Prominent cases in the conservative school were: Yusuf v. ACB Ltd. (1976) 4 SC1; Numba Commercial Farms Ltd & Anor. v NAL Merchant Bank Ltd & Anor. (2003) FWLR (Pt. 190) 661 and UBA v. SAPFU (2004) 3 NWLR (Pt.861) 516.

[4]Esso West Africa Inc. v. T. Oyegbola (1969)1 NMLR 194;Anyaebosi&Ors v. R. T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt. 59) 108;Oghoyone v. Oghoyone (2010) LPELR- 4689.  Trade Bank v. Chami (2003) 13 NWLR (Pt. 836) 216; FRN v. Femi Fani-Kayode (2010) 14 NWLR (Pt. 1214) 481. belonged to the Liberal School of thought.

[5]In Esso West Africa Inc. v. Oyebola (1969) NMLR 194 the Supreme Court pronounced: The law cannot and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computers…”  Pp. 216-217

[6] (2020) VOL. 1. ACEE 33 (SC)

[7]Ibid. at P.37 Per Onnoghen, JSC (as he then was)

[8] Ibid. P. 37. Per Onnoghen, JSC (as he then was).

[9]See: Ibid. P. 37


[11]Arinze, A. (2018). Digital Evidence & eDiscovery Law Practice in Nigeria (2018). Unilag Press/Law Data Publishers

[12]Arinze, A. (2018). Digital Evidence & eDiscovery Law Practice in Nigeria (2018). Unilag Press/Law Data Publishers. P. 455

[13]Omolaye-Ajileye, A. (2019). Electronic Evidence, Revised Edition. (Jurist Publications).

[14] Ibid. Pp. 181-182

[15]Section 84(1) of the Evidence Act, 2011.

[16] (2018) LPELR- 44160 (CA). (Per Oseji, JCA)



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