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Senate moves to amend 64 year old Evidence Act

….Text messages, computer print-outs could become admissible in court

By Emmanuel Aziken

When the Evidence Act was first enacted 64 years ago it neither envisaged the use of computer technology nor the use of mobile telephone text messages in fraud. It is thus not surprising that clear evidence of the use of computers and mobile phones remain inadmissible in Nigerian courts today. Rather, the courts remain fixated with bank books and other archaic materials that were engraved in the Evidence Act.

Now, a bill to amend the Evidence Act to allow the use of electronic and other computer generated evidence in the prosecution of fraud cases has been introduced into the Senate. The bill sponsored by Senator Sola Akinyede (PDP, Ekiti ) principally aims to remove the present loophole that does not allow electronic and other computer generated evidences to be admissible in court.

The bill according to an accompanying memorandum obtained by Vanguard hopes to put Nigerian evidence law which it claims to be presently anachronistic to be in line with global reality.

The amended evidence Act according to the memorandum would also become handy with the Federal Government’s adoption of e_payment as its basic form of banking payments for contracts.

Senator Akinyede in the memorandum argues that under the present dispensation that the authorities would find it difficult to successfully prosecute fraud perpetuated under the e-payment scheme as many of the materials that could ordinarily be tendered in court are presently not admissible under the extant Evidence Act.

The memorandum argues thus,“the advancement in computer technology and the phenomenal and wide ranging application of its use ranges from banking where money is now wired electronically, cash is withdrawn by credit or debit cards and from Automatic Teller Machines (ATMs) and even cheques can now be paid into our accounts using ATMs; to education where we can now check our children’s results from their school websites; to medicine where Magnetic Resonance Imaging (MRI) has become the standard and safest means of probing the inner recesses of the human body and observing three dimensional images thus doing away with what was known as exploratory surgery 30 – 40 years ago.”

Noting the extent to which many other countries have gone to amend their Evidence Acts to bring them in line with global technological developments, he regretted that Nigeria was yet to do likewise and painted the following scenario to show the dilemma of the Nigerian legal system. “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 installment of $250,000 into Mr. B’s account by electronic transfer.”

“Mr. B sends his account number by e-mail or 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.” “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.”

Also painting an illustration of how the failure to amend the Evidence Act has negated the war against corruption, he said, “if a public officer working in the Central Bank illegally transfers one billion dollars of the country’s money into his personal numbered account in Switzerland by electronic transfer, the computer printout evidencing that transfer while admissible in Switzerland, the USA or the European Union, is not admissible in Nigeria.”

Giving yet another illustration on the deficiencies of the Evidence Act in Nigeria in checking crimes committed through advanced technology, he said: “If a Nigerian sends an e-mail to a foreign businessman requesting to buy some products at an agreed price and promising to pay half of the product sum in advance and the balance on delivery.

If the foreigner agrees by e-mail and delivers, and the Nigerian businessman defaults in payment of the balance, it is going to be difficult if not impossible for the foreigner to prove the details of the transaction because the contract was entered into by the most common method in the world today- e-mail which our evidence law does not recognize.”

It is also argued in the memorandum that the failure to amend the Evidence Act could also negatively affect the country’s drive for direct foreign investment as the author of the bill argues that no country would want to do business in a country whose “justice system does not recognize the standard method by which business is conducted globally.”

Noting that the amendment of the Evidence Act would become handy with the recent decision of the Federal Government to adopt the e-payment system in its disbursement of funds, he said, “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?”, Senator Akinyede asked in the memorandum.

Explaining further, he said, “the basic problem is that our 64 year old Evidence Law does not recognize any record except that record is written on a piece of paper. It does not recognize electronic record. Apart from records produced by stenography and photocopiers, it does not recognize any other form of record produced by more advanced technology that has emerged since the enactment of that law.”

“What this amendment seeks to do among other things, is 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.” “The bottom – line is that today our Evidence law is anachronistic and obsolete and totally out of touch with global reality.

The purpose of the proposed amendment is to bring it into conformity with modernity and global best practices.” “Naturally, computer technology has brought with it its own peculiar problems such as the issue of authenticity. These problems have been addressed by the amendment by the introduction of a new part (part xiv) on electronic evidence to guide the procedure for admitting electronic evidence in our courts.”


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