ELECTRONICALLY GENERATED EVIDENCE REGIME IN NIGERIA

In an increasingly digital world, the courts are frequently confronted with evidence generated, stored, or transmitted by electronic devices. From emails and bank statements to online publications and call logs, electronically generated evidence plays a central role in modern litigation. However, traditional rules of evidence were historically devised for paper-based proof. This raises questions about how electronic evidence should be admitted and authenticated in Nigerian courts.

Prior to the enactment of the Evidence Act 2011, electronically generated evidence was largely excluded or treated with uncertainty under the repealed Evidence Act. The Evidence Act 2011 (as Amended), has attempted to develop a coherent regime for the admissibility of electronic records. However, practical and doctrinal challenges still persist. Some of these include, issues surrounding authenticity, foundational requirements, certification, and judicial interpretation. 

This article examines the legal framework for the admissibility of electronically generated evidence in Nigeria, relevant statutory provisions of the Evidence Act, leading judicial authorities, and critical issues affecting their application. It seeks to clarify the current state of the law and highlight areas that remain unsettled.

Electronically Generated Evidence: Legal and Statutory Framework

1. General Principles of Admissibility

Under Nigerian law, the admissibility of evidence generally begins with relevance. Section 6 of the Evidence Act provides that evidence may be adduced as to “the existence or non-existence of every fact in issue and of such other facts as are declared to be relevant” in proceedings before a court. Evidence must be such that it “tends to prove or disprove” a fact in issue, and nothing. However, relevance alone is insufficient for electronic evidence,. Electronic records and documents often raise greater problems of authenticity, integrity and reliability. It requires further statutory conditions before they can be admitted.

2. Evidence Act 2011: Sections Governing Electronically Generated Evidence

The pivotal statutory provision on electronic evidence in the Nigerian Evidence Act 2011 is Section 84 (as amended). It governs the admissibility of statements contained in documents produced by a computer. Prior to the 2011 Act, the Evidence Act was silent as to whether computer-generated evidence was admissible, leading to conflicting judicial stances and scholarly criticism. 

Section 84 — Admissibility of Statements in Documents Produced by Computer

In essence:

1. Section 84(1) provides that in any proceeding, a statement in a document produced by a computer shall be admissible as evidence of any fact stated in it, if the conditions in Section 84(2) are satisfied. This aligns with the principle that electronically generated evidence is akin to documentary evidence but subject to specific conditions. 
2. Section 84(2) sets out mandatory foundational conditions, typically interpreted to require evidence that:
   • the computer was operating properly at the material time;
   • the information was supplied to the computer in the ordinary course of business; and
   • the type of document was regularly produced thereby. 
3. Section 84(4) allows for a certificate of authenticity identifying the document. It describes how it was produced. It also gives particulars of the device signed by someone responsible for the operation of the device, to be primary and sufficient evidence of the matters in the certificate. 

The Evidence (Amendment) Act 2023 introduced additional clarity, defining “electronic record” to encompass data or images stored, received or sent in electronic form (Section 10 of the Amendment), and expanding admissibility provisions accordingly. 

3. Definitions: Document, Computer, Electronic Records

The Evidence Act defines “document” broadly to include any device or medium used for storing, recording, or retrieving information (Section 258). This inclusive definition is crucial for bringing electronic records, printouts, emails, and mobile phone data within the statutory framework for documentary evidence. 

“Computer” or “electronic device” is likewise defined to capture a range of devices used in modern record-keeping. This interpretation ensures that SMS messages, GSM handset data, and other digitally produced records can qualify as documentary evidence if properly foundationally supported.

Judicial Authority on Electronically Generated Evidence

1. Kubor & Ors v. Dickson & Ors¹

In Kubor v Dickson, the Supreme Court delivered a landmark ruling on the admissibility of electronically generated evidence under Section 84. The court held that compliance with the mandatory conditions of Section 84 must be established before electronic evidence can be admitted. It stressed that merely tendering a computer-generated document from the bar is insufficient. Evidence must be adduced on oath to show that the conditions under Section 84(2) were satisfied (e.g., proper operation and usage of the computer). As public documents, the electronic exhibits also required certification if they were secondary evidence. 

This decision cemented the principle that electronic evidence is admissible only upon foundational proof of authenticity and reliability as required by statute.

2. U.B.N. Plc v. Agbontaen & Anor (Court of Appeal)

In U.B.N. Plc v Agbontaen,² the Court of Appeal upheld that statements of account were indeed computer-generated documents requiring compliance with Section 84. The court rejected the argument that other sections (e.g., Sections 51, 89) could be used to bypass the requirements of Section 84, affirming the primacy of Section 84 for electronically generated records. This aligns with the logic that the legislature intended specific conditions for computer-produced evidence. 

3. Cases on Foundational Evidence

Subsequent Court of Appeal decisions clarified that where a party fails to adduce any evidence on oath to satisfy Section 84 conditions, the electronic record is inadmissible. In Nnamani v. FBN & Anor, for instance, the court held that absence of evidence satisfying Section 84 conditions rendered the computer-generated document inadmissible. 

The Admissibility of Electronically Generated Evidence: Key Issues and Challenges

1. Authentication and Foundation

A recurring challenge is establishing authenticity. Section 84(2) requires foundational evidence to demonstrate the reliability of the electronic source. Courts have held that oral testimony or certificates of authenticity can establish this, but compliance often requires technical evidence or expert testimony, which can be burdensome for litigants.

2. Certification Regime

The role of the certificate under Section 84(4) is to simplify admissibility by providing prima facie proof of the conditions, but courts have sometimes treated it as mandatory even where oral evidence could suffice, complicating the admissibility process.

3. Weight or Admissibility

Even when electronic evidence is admitted, questions about its weight (probative value) remain. Issues like potential alteration or lack of secure storage often affect how much weight a court gives the evidence rather than whether it should be admitted.

4. Conflicts with Other Sections

There is scholarly debate on whether Section 84 should override other documentary provisions where electronic records overlap with traditional document rules. Some argue Section 84 governs generally, while other sections operate as exceptions. 

Final Thoughts on the Admissibility of Electronically Generated Evidence

The Nigerian legal system has made significant strides in incorporating electronic evidence into the evidentiary regime. The Evidence Act 2011 and its 2023 Amendment provide a statutory foundation for the admissibility of electronically generated evidence. Judicial decisions, particularly Kubor v Dickson, emphasise strict compliance with Section 84’s conditions as fundamental to admissibility. However, practical challenges persist in authentication, certification requirements, and judicial application of foundational rules.

To enhance the regime, it may be necessary to develop clearer procedural guidelines and judicial protocols on handling electronic evidence, possibly drawing on comparative models that balance authenticity with practical realities of digital records. Nonetheless, Nigeria’s statutory framework now recognises the centrality of electronic evidence and has equipped courts with tools to admit such evidence where properly authenticated and relevant.

Ojienoh Segun Justice Esq.,

Lead Partner, EKO SOLICITORS & ADVOCATES

CHINWENDU MBANU

Graduate Trainee, EKO SOLICITORS & ADVOCATES

1. (2013) 4 NWLR (Pt. 1345) 534 (SC) ↩︎
2. CA/B/204/2016 ↩︎