The current Evidence Act being operated in Nigeria has on many occasions, embarrassed the judiciary, especially as it concerns tendering computer print-outs evidence in court. It was therefore a thing of joy when the Senate gave an indication recently that it wants to amend the controversial Act to be in tune with modernity.
Thus three weeks ago when the Senate began the process of amending the 64-year old Act to permit the admissibility in court of electronic- and computer-generated evidence, the joy of those clamouring for the amendment of the Act knew no bounds.
Specifically, on July 7, this year, the Bill seeking to amend the Act was read for the first time (short title of the Bill). Sponsored by the Senator Sola Akinyede, the bill is ready for second reading any time from now. The Bill amending the 1945 Act seeks to permit the admissibility in court of electronic and computer generated evidence. The Act, as it is, only provides for the admissibility of original of documents pleaded in court.
The Act, in its current form, has not only caused a lot of controversies, but has on numerous occasions, created problems for the judiciary and other Acts meant to check the excesses of people involved in criminal activities on many occasions.
The amendment, which no doubt is in order to make the Act be in tune with international standards as well as provide the right atmosphere for growth and investment in the country, according to many analysts, is long over due.
While the Act is part of laws bequeathed to Nigeria by Great Britain which colonised the country from 1914 to 1960, the same Britain in spite of her conservatism, had long reviewed some of her own laws to cater for its ever-changing society and development, but Nigeria has largely remained underdeveloped.
Specific amendments proposed in the Bill which from available indications would be supplementary to the Evidence Act as interpretation, include Section 2 which provides for the interpretation of bankers' books to encapsulate "electronic records, writings and recordings and all other books and documents." Section 3 on the interpretation of "document" to include electronic document or electronic records," while it seeks to amend Section 4 by adding the following under the interpretation section: "data" means representations, in any form, of information or concepts. It also seeks to add "duplicate" to include a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.Other proposed amendments cover the interpretations of "electronic record," "electronic record system," "legal proceeding," "original," "photographs," and "writing and recordings."
This is not the first time that efforts would be made to amend the Act. In the fifth session of the Senate, Senator Patrick Osakwe (Delta North) initiated an amendment process which did not run its full course. The proposed amendment had lapsed with the life of the Senate session. The new amendments being proposed by Akinyede and which are set to pass through the mill in the Senate, from available records, would appear to be more encompassing.
The Amendment Bill seeks to expand the meaning of the word-“document” to include electronic records; expand the meaning of the phrase-“bankers’ books” and expand the meaning of the word-“original.” Akinyede said that the purpose of the proposed amendment was to bring the Act into conformity with modernity and global best practices.
Specific amendments proposed in the Bill (which would be supplementary to the Evidence Act as interpretation) include Section 2 which provides for the interpretation of bankers’ books to encapsulate “electronic records, writings and recordings and all other books and documents,” and Section 3 on the interpretation of “document” to include electronic document or electronic records.”
Section 4 is amended by adding the following under the interpretation section: “data” means representations, in any form, of information or concepts; “duplicate” means a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
Other proposed amendments cover the interpretations of “electronic record,” “electronic record system,” “legal proceeding,” “original,” “photographs,” and “writing and recordings.” In a letter to his colleagues, ostensibly seeking their support for the proposed amendments to sail through, he said, “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. “Since then, there has been technological advancement in all fields of human endeavour particularly in the area of computer technology which was introduced to Nigeria more than 30 years ago.” He said that in recognition of the “ubiquity of computer technology many countries had moved with technological advancement by amending their laws such that evidence obtained from that technology is admissible under the laws of those countries.”
Akinyede painted this scenario: “Mr. A sends an e-mail to Mr. B, asking him to kill Mrs. C, promising that he (Mr. A) will pay a sum of $500,000 to Mr. B and that as an indication of his seriousness, he will pay a first instalment of $250,000 into Mr. B’s account by electronic transfer.
“Mr. B sends his account number by e-mail pr by text and the sum of $250,000 is wired electronically to Mr. B’s account. Fortunately for Mrs. C, someone tips her off and on the appointed day, Mr. B is caught by the police in Mrs. C’s compound with a knife, a rope with which he intended to strangle her.
“As our Evidence law stands today, in spite of the overwhelming evidence, the worst that can happen to Mr. B is to be convicted for trespass or at best burglary because the e-mail asking him to kill Mrs. C is not admissible in a court of law in Nigeria by virtue of the provisions of Sections 93, 94, 95 and 96 of the Evidence Act, which state that documents must be proved by primary evidence (and) primary evidence is defined by Section 94 (1) as the document itself produced for the inspection of the court.”
He added: “What is the document in a computer system? Is it the word on the monitor? Many people will argue that it is not because what appears on the monitor comes from the hard drive. Unfortunately, the information on the hard drive cannot be read by sight and even if it can, are persons expected to carry their computers with hard drives to the court every time they want to prove their cases?
“The text message providing the account number is not admissible. The computer printout evidencing the payment of $250,000 is not admissible because it is not an original and does not qualify as secondary evidence under Section 97 of the Evidence Act. Of course, the initiator of the assassination attempt, Mr. A, will go scot-free because his e-mail and printout of the statement of account are inadmissible.”
Akinyede said that electronic transfer of funds had become the standard system of global business transaction and wondered how the nation could be clamouring for foreign investment s when the nation’s justice system did not recognize the standard method. Hear him: “Finally, the Federal Government has now determined that all payments to government contractors, etc., will no longer be by cheques but by electronic payment. Does it make sense to transact business by a method which our law does not recognize?”
He explained that the basic problem with Evidence Act “is that it does not recognise any record except that record is written on a piece of paper; it does not recognise any electronic record. Apart from records produced by stenography and photocopiers, it does not recognise any other form of record produced by more advanced technology that has emerged since the enactment of that law. It does not recognise records produced by magnetic impulse e.g. records on a credit card; the records it recognises are what is called ‘original’ which only related to a piece of paper.”
He stated that by virtue of the 1945 definition of the word “original,” both the data on the computer monitor and the printout are not original, adding “it is therefore not surprising that in recent times, computer printouts of bank statements have been rejected by our law courts and as unbelievable as it sounds, this is the state of our law in 2009.” Support for the amendments has crystallized from within and outside the Senate. Chairman of the Senate Committee on Housing and Urban Development, Senator Ikechukwu Obiorah (PDP, Anambra South), who is a lawyer, said that the amendment bill sponsored by Akinyede was a welcomed development.
According to him, “it is a beautiful bill. I support it and it is very timely. Technology has gone apace of the Evidence Act and this should be part of the routine review of our codified laws to update them and bring them in line with the present realities. There will be other areas that will be taken into account. We will bring the situation in line with the changing realities of our time.”
An Abuja-based lawyer and proprietor of Pace Setters’ College, Mr. Kenneth Imansuangbon applauded the Amendment Bill. He said: “We are in modern times; we are in the jet age. Crimes are now committed by electronic means and good governance is being done through the electronic medium, talking about e-governance, e-payment, etal. The judiciary must rise and keep pace with the realities of the times in the changing global system. “The National Assembly should be supported to amend our obsolete laws, especially the Evidence Act to the effect that evidence from well defined sources like the electronic and computer generated evidence be admitted as pieces of evidence in court. If text messages, phone discussion, radio messages are related to court trials; it should be consistent with trial. The amendment bill is a welcomed development.”
Barrister Adamson Adeboro, an Abuja-based lawyer, said that the amendment was a welcome development. Hear him: “The amendment is long overdue. The Evidence Act as currently constituted is a colonial law which is at variance with realities in Nigeria. The Act, as it were, fails to move with the dynamism of society. There are lots of areas that the Act does not envisage and therefore the amendment is apposite.”
He said further, “For instance, the electronic generated evidence is not covered by the Evidence Act. So, if you are to tender an electronically-generated evidence in court, you have to go through a gamut of rigour to convince the judge to admit the same. Also, all documents generated through computer (printouts) are not admissible under the Act and this is because as at the time the drafters of the Act were drafting it, they did not apprehend the advent of computer.
“Today, for you to tender any evidence that is generated by computer, you have to bring in an expert who will first establish that he is an expert in that area and again prove to the court that the computer from which the evidence was generated is not faulty. All these are great problems. Adeboro posited: “The rule of evidence is that primary evidence is admissible. Now, the Evidence Act is clearly against hearsay evidence; where a document is generated through the computer, a printout of it becomes a hearsay or secondary evidence because it is not directly from the person who put it in the computer. This is usually that the information which eventually emerges from the computer is keyed in by a data entry clerk or purely mechanized intermediaries who routinely carry out several such instructions as the last human functionaries in a chain of command.”
He continued: “Now, where such evidence is sought to be tendered in court, in order not to contravene the rule, a person with the knowledge of the entry of the data must be called to give evidence. In that area, we need a change to the extent that we need to take computer as genuine and regarded as primary evidence.”
One of the reasons why it has become imperative to amend the Act manifested when Justice Ahmed Ramat Mohammed of the Federal High Court, Lagos ruling in the case between the Economic and Financial Crimes Commission vs Mr. Femi Fani-Kayode, former Minister of Aviation, rejected computer print-out of a bank statement of account tendered before his court as evidence, saying that computer generated statement of account was inadmissible as evidence in court.
Even though the ruling attracted a lot of condemnations, the judge stressed the need for legislation to be made in respect of the area in question, saying: "Though counsel made reference to the modern-day practice of using computers in the day to day business of the bank, it is my opinion that the law remains as it is. It has not been amended by an act of the National Assembly, although it was high time they did that and I am bound to apply the law as it is."
He also called for the amendment of the Evidence Act to meet current challenges. "There is urgent need for an amendment of the Evidence Act to cover the admissibility of document made by means of computer print-out since it is clear that those technological methods of producing document now form part of the day-to-day activities in business transactions, especially in the banking circle," the Judge stressed.
The section of the Evidence Act, which Justice Mohammed relied upon states: Section 97(1) "secondary evidence may be given of the existence, condition or contents of a document in the following cases - (h) when the document is an entry in a banker's book. 2. "The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) of this section is a follows" - (e) in paragraph (h) "the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit."
Fani-Kayode, who is currently standing trial on a 47-count charge of money laundering preferred against him by the EFCC, was alleged to have between September 2006 to January 2007 while serving as Minister of Culture and Tourism and later, Aviation received cash in excess of N500, 000 and paying same into his personal investment account, totalling over N231million. He was believed to have paid the money into his personal investment account for 90 days, through one of his aides, Mark Saviour Ndifreke (now at large) contrary to Section 15 of the Money Laundering (Prohibition) Act 2004. He pleaded not guilty to all the charges.
In one of the court's sittings before the ruling, prosecution witness, one Olubayo Sadipo, told the court in Lagos that one Mark Ndifreke, an aide of Fani-Kayode brought in N25million cash, which was paid into his (Fani-Kayode) account as fixed deposit. He said the N25million was brought in two tranches of N10million and N15million by the aide and that at the expiration of the fixed deposit, the former minister wrote an official letter, with the letterhead of the Federal Ministry of Transport and signed same as the Minister of State for Transport, terminating the investment.
Led in evidence by counsel to EFCC, Mr. Festus Keyamo, the witness said Fani-Kayode became a customer of the bank in 2002 and operated a savings account, which also had the feature of a current account. At that point Kayamo tendered the former minister's opening account form, called 'Win Account', which was opposed by the defence, but they were over-ruled by the court, which admitted same as exhibit.
Asked if there were other accounts connected to Fani-Kayode, the witness said, "We also have the account of Remilekun Fani-Kayode opened in 2006 and that of Regina Fani-Kayode opened in 2005." Evidence of the accounts was also tendered by the prosecution. But as the prosecution attempted to tender the statement, defence counsel, led by Chief Ladi Williams (SAN), opposed it. He said it was unlawful for computer print-out of statements of account to be tendered in court.
The senior advocate also argued that National Assembly had not made legislation for admission in evidence of a computer print-out even if the document was relevant to the proceedings. But Keyamo replied by saying that what the EFCC produced was an original copy of the statement of account, adding that the Evidence Act had not developed to the extent where it covered computer technology and how document produced could be admitted in evidence.
Reacting to the news that the upper legislative chamber was planning to amend the Evidence Act, an Abuja-based legal practitioner, Mr. Jide Ojo, said until some of the country's laws are reviewed, they would continue to embarrass the country and make a mockery of the judiciary. "You see, the Nigerian Evidence Act particularly is obsolete. I am quite sure that when the Act was compiled, computer or information technology was not as prominent as it is now. Which is why our lawmakers should move with time. We know that so many of them are not even IT compliant. All they know is to their positions to pursue personal issues."
He also called for the establishment of special courts to handle corruption cases, as according to him, the ordinary courts have failed to guarantee justice against corrupt members of the society, many of whom, he said, are flouting their ill-gotten wealth because they can manipulate the judiciary process.
"Yes, government has been saying that it is fighting corruption but I must say that the government is beginning to sound like a broken record. All we hear is talk, talk, talk about people being charged, there was corruption here, it was uncovered there, billions here, millions there. But we never hear of convictions. If government is to make people know that something is truly happening in the fight against corruption, we must not only see convictions, but the laws must be amended to convict these people.
"It is not enough to charge people to court and then the next day they would be granted bail and that is all about it. They go about as free people to flaunt their ill-gotten wealth. This insults the sensibilities of honest members of the public and cannot therefore continue," he stressed.
This is a challenge to both National Assembly and the newly inaugurated members of the Nigerian Law Reforms Commission (NLRC) must pursue with vigour. They need to urgently set up a machinery to review and amend some of the country's archaic laws. It is good that NLRC Chairman, Justice Umar Atu Kalgo (JSC) noted during the inauguration of his commission that some of the existing laws have become obsolete for the economic and political development of the country, and that there was the need to modify some of the laws to make them be in tune with international standards as well as provide the right atmosphere for investment in the country."
The second reading of the Bill will enable senators to talk on the Bill’s general principles; and, if it scales the second reading, as it is poised to do, Nigerians will have the opportunity to make their input during the public hearing, preparatory to third reading and passage.
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Quelle/Source: THISDAY, 21.07.2009
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