The regime governing evidence in both civil and criminal procedures in Nigeria is the Evidence Act enacted 2011 (collected 2004) otherwise cited as the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004. This statute has been well explored and acclaimed for containing a number of new innovations. Indeed after several years of application, this writer concurs with legal practitioners, researchers and academics about positive reforms and amendments found in the Act, save as will be seen in the foregoing.
Despite these novelties, one area in which the Act falls shot of international standard is in its handling of computer evidence. Incidentally, this is the specific area in which most Nigerian commentators find the new Act `exceedingly’ innovative.
In this piece, it will be humbly submitted that the corpus juris on the broad theme of electronic evidence which the Evidence Act is presumed to represent, is almost fatally flawed and cannot meet the challenges of a modern society driven by technological determinism and the digital age which Nigeria has embraced.
The Act has the computer, not the entire scope of electronic evidence as its focus. It is important to note that the computer is an electronic device for doing work- through logical processing and interpretation of data. As such, it is a subset of larger conception of electronic intelligence.
According to the Act, computer evidence is that part of evidence which deals with admissibility of statements in documents produced by computers. Thus “ 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 is shown that the conditions in Subsection 2 of this Section are satisfied in relation to the statement and computer in question’’ – Section 84 (1)- Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004.
It is discernable from the above that the emphasis is on solid state processed output data from the computer. These data forms will encompass all forms of hard copies and documentary materials such as papers, print outs and recorded films. It does not, ipso facto, include materials described as soft copies whether in electronic, digitized, presentational forms; hidden metadata that describe other data; or data still recessed in the memory and registers of the computer. Thus the condition and management of the records of data during processing and within the internals of the electronic system is not a primary concern of the Act. This is because there is a presumption particularly by Nigerian jurists that the output of a computer device is materially representative of the input and processed information of the computer. This perhaps is the rationale behind Nigerian courts preference for hard viewable evidence.’
It is now the position vide case law that the critical element in computer evidence, where the questions of relevance had already been determined and the evidential material had been admitted, is the exhibition of certificate authenticating the computer generated documents (Section 84(4) of the Evidence Act 2011), produced by the operator of the computer (whether as standalone or in a networked environment) as part of an affidavit. The generated document is deemed to be the primary document of the transaction. In order to appreciate the challenges inherent in the determination of admissibility of this type of evidence, it is important to read Section 84 of the Act in its entirety and perhaps Section 258 of the same Act.
A few scenarios of the challenges in the application of existing provision of the Act may be necessary: A potential litigant alleges that because of fraud occasioning irregular postings, some students lost their lives during national service. It is now necessary to determine whether the postings printed out by NYSC matched the original ones granted the student by a computer automated algorithm of the centralized computer system. The Nigerian government has now launched an investigation, and the families of the students are preparing to litigate. There could be other examples such as contentions in social or formal media about the records of voters; questions about disparities in the actual e-payments received by pensioners compared to what were approved; student JAMB scores versus stored or published JAMB data. It can also be discerned from the still unfolding story of Governor Wike’s audio and call logs. In this instance, Wike is being accused of issuing death threats to INEC officials in connection with recent legislative elections in Rivers State. The evidence is contained in an alleged voice recording of the Governor’s phone calls. Although Wike has denied the allegation, the Police has nevertheless launched an investigation into the allegation which would include acquisition of audio forensics- voice identification, sampling, analysis and validation. How would the Act accommodate this situation?
Wike has constitutional immunity and it is doubtful if a prosecution can be pursued in his matter while he remains Governor. However, lawyers will agree that the most important question for determination is whether there is a statistical close match between an original sample (the constant in the forensics equation) of Wike’s voice and that captured in the recordings (the variable in same equation). The recording of Wike’s voice constitutes computer evidence or electronic stored information (ESI) and must therefore be subject to the Evidence Act.
By virtue of S. 84 of the Act, whatever the investigating and prosecutorial authorities find, as well as the court proceeding on the merit of the case, will be adduced from both affidavit evidence and certificate of production as part of the four requirements of S. 84(2) of the Evidence Act 2011: “… a statement contained in a document [includes recorded material] produced via a computer, which statement is relevant to the facts in issue, is admissible as evidence on the fulfilment of the following conditions precedent:- (a) The computer from which the document was produced, was used regularly during the material period to store electronic information or to process information of the kind stated in the document; (b) The computer from which the document was produced also had stored in it other information of the kind contained in the document or of the kind from which the information contained in the document was derived; (c) That throughout the material period, the computer was operating properly; and where it was not, evidence must be provided to establish that during the period when the computer was not operating properly, the production of the document or the accuracy of its contents were not compromised or affected; (d) That the information in the statement is reproduced or derived from the information supplied to the computer in the ordinary course of the activities in question.’’ These will be the basis upon which courts will make their findings. See Supreme Court decision in Imoro Kubor & Anor. v. Seriake Henry Dickson & Ors. (2012) LPELR-SC.369/2012, on the fact that “computerized data is discoverable, if relevant’’ per Sections 84, 34, and 258 of the Act.
The suggestion here is that these provisions are not robust and sophisticated enough for cases involving electronic evidence. Much reliance on the output element will be insufficient to secure the appropriate depth of proof to do justice. It is presumed that once the conditions in 84 (2) are met, convincing the court about admissibility is almost certain.
The fact is that computer output can be manipulated through its processors and memories including registers. It is certainly not the case at all times that the output is representative of the input or processed information within the central processors, memories and registers of computers. Excluding deliberate act of hacking, as , it is possible to tweak the CPU through the techniques of high level/machine languages and binary microprogramming. Manipulation can also be done through changes in the packets of network addresses and media access codes which represent the identities of interconnected devices. Thus firmware programmers will agree that the presumption of input being representative of output model, is rebuttable. Sadly, this is the very principle and presumption upon the Evidence Act is formulated.
Thus it is possible to spoilate ESI by way of deleting, defragmenting, formatting, concealing, encrypting, wiping, altering file extensions, corrupting or tampering with resident data which of course will eventually constitute the output representation and the subject matter of S. 84 affidavit and certificate. Consequently, it is argued that the proper approach towards the amendment of the Act in respect of e-evidence and discovery would be to concentrate on the actual data stored and within the internals of a computer electronic device. It will be technically wrong to assume that the mere fact that the computer is operating in the normal environment and in the course of business translates to an output with data integrity per Section 84.
Nigeria is a part of the world community in which most businesses at private, public and inter-governmental levels are conducted through electronic means. It is recommended that Nigeria examines the adoption of international standard which is based on a new electronic data reference model. In this model, the retention and management, preservation and collection of relevant or responsive information from the computer leads to production and presentation of data for purpose of adjudication. The central At the core of this model, is the fact that once a legal action has been initiated or there is anticipation of litigation (as in the case of Wike’s audio recordings), a legal hold is invoked requiring the Defendant (usually the custodian of the electronic stored data) not to tamper with information that may be used or subpoenaed as relevant to the potential case. Consequently, where a legal hold fails to be activated by the potential Defendant (such as the Wike’s phone network company, source or custodian of the original recording ) then there is a presumption of law that tampering was willfully intended and may have been carried out by the custodial Defendant. There may be `automatic’ sanctions or possible loss against the Defendant without even the court considering the merits of the case. This is the trend. See US Federal Rules of Civil Procedure (FRCP), and Federal Rules of Evidence (FRE) on e-Discovery; United States v. Microsoft Corporation 253 F.3d 34 (D.C. Cir. 2001); Zubulake v USB Warburg LLC, 217 FRD 309 (SDNY 2003).
The Evidence Act should therefore be revisited and amended to reflect the needs and complexities of a technologizing nation like Nigeria doing business in an interconnected globalized economy. We recommend an amendment to the effect that once there is the likelihood of litigation involving the use of e-evidence, the potential Defendant with the custodial data must on its own initiate a legal hold as a matter of law, for the preservation of electronic evidence data relevant to a looming case notwithstanding its document retention policy. This initiative is at the pretrial stage, an in-house arrangement which will require proof that it was triggered and implemented, even before the service of court processes, case management, preliminary hearings and injunctive orders. It is important to also remember that the Rules of Professional Conduct (RPC) imposes a duty on counsel representing the Defendant as holder of the ESI to fully disclose and assist courts do justice. Nigeria should explore and develop this area of law within its rules of evidence.
*Dr. Silva Opusunju Esq.