LITIGATION NEWSLETTER MAY 2015

DEVELOPMENT OF E-COMMERCE IN NIGERIA: THE IMPACT OF THE SUPREME COURT DECISION IN KUBOR v. DICKSON 1

Introduction

Electronic commerce commonly known as e-Commerce or e-Business consists of buying and selling of products or services over electronic systems such as the internet and other computer networks.2 It has also been defined as the exchange of information across electronic networks at any stage in the supply chain, whether within an organization, between businesses, between businesses and consumers or between the public and private sectors whether paid or unpaid.3 E-Commerce involves Electronic Funds Transfer (EFT), Supply Chain Management, Internet Marketing, Online Transaction processing, Electronic Data Interchange (EDI), Inventory Management Systems, Automated Data Collection systems, among others.

The advent of technological development and the consequent evolution of paperless transactions have permeated every sphere of life and the legal system in Nigeria is not excluded. In 2014 alone, Nigeria recorded over $2 million worth of online transactions per week and close to $1.3 billion monthly. Nigeria’s e-commerce market is developing rapidly, with an estimated growth rate of 25 percent annually.4 We now live in an electronic age where everyday transactions are conducted on electronic platforms. In the event of dispute on transactions conducted through electronic means, parties are bound to rely on electronic evidence of such transactions.

The recent amendment of the Evidence Act in 2011 was a legislative reaction to the need to provide for the use of such electronic evidence in court proceedings5. Before the amendment, admissibility of electronic evidence in court proceedings had been controversial due to the absence of specific provisions in the repealed Act, even in the light of the Supreme Court decisions in cases like Esso W.A. v. Oyegbola6 and others7 which held that computer print-outs were admissible.

1 (2014) 4 NWLR Part 1345, page 5342 http://en.wikipedia.org/wiki/Electronic_Commerce 3 United Kingdom Cabinet Office, 19994 Daily Independent Newspaper, Saturday, 17th January 20155 Cap E14, LFN 20116 (1969) NMLR 1947 See also the cases of Yesufu v ACB (1976) 4 SC 1@ 9-14, Anyaebosi v RT Brisco (1987) 3NWLR (PT 59) 84, Oguma Associates Co. v IBWA (1988) 1 NSCC 395, Trade Bank v Chami (2003) 13 NWLR (PT 836) 158; Oghoyone v Oghoyone (2010) 3 NWLR (Pt 1182), 564., FRN v Fani-Kayode (2010) 14 NWLR (PT 1214) 481, Continental v R. Shipping [2013] 4 NWLR (Pt. 1343) 67; Lufthansa v William Ballnyne (2012) LPELR-7977

In Kubor v Dickson, the Supreme Court examined the provisions of sections 84, 34(1)(b) and 258 of the Evidence Act 2011 regarding the concept of document and the admissibility of electronic evidence.

Facts of the Case

This is an election petition matter. The Appellants challenged the election and return of the 1st Respondent as the Governor of Bayelsa State in the February 11, 2012 governorship election in that state. One of the documents tendered by the Appellants was a computer printout of the online version of the Punch Newspaper and another document from the website of the Independent National Electoral Commission (INEC), the 3rd Respondent in the appeal. While the electronic version of The Punch Newspaper was admitted and marked as Exhibit ”D”, the document from INEC’s website was admitted and marked Exhibit “L”. Sadly, the Appellants did not satisfy the conditions laid down in section 84(2) of the Evidence Act with respect to the admissibility of electronic evidence.

As expected, the matter went on appeal and one of the contentions was that since Exhibits “D” and “L” were public documents, only certified copies thereof were admissible in evidence; and that in any case, the documents having been tendered from the Bar without the foundational conditions set out in section 84(2) of the evidence Act being satisfied, both documents were inadmissible in evidence.

The Decision

The Supreme Court agreed totally with the above submissions of the Respondents. In the leading judgment, the Court stated that:

“There is no evidence on record to show that the appellants in tendering exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under section 84 of the Evidence Act, 2011. No wonder therefore that the lower court held at page 838 of the record thus:-

‘A party that seeks to tender in evidence 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.’

I agree entirely with the above conclusion. Since the appellants never fulfilled the pre-condition laid down by law, Exhibits “D” and “L” were inadmissible as computer generated evidence.”

The Appellants’ appeal against the judgment of the Court of Appeal which affirmed the decision of the Electoral Tribunal was accordingly dismissed. Concurring with the leading judgment, Ogunbiyi, JSC also reasoned that the

electronically generated documents were in the nature of secondary evidence and that both documents being public documents needed to have been certified before being tendered in evidence.

Comments

The above decision of the Nigerian Supreme Court underscores two vital points. First, it recognizes and endorses the use of electronic evidence in Nigeria. Second, it re-iterates the conditions for the admissibility of electronic evidence. From the above case, in determining the admissibility of electronic evidence, the court has to look beyond the general conditions for admissibility of evidence in civil and criminal trials. In other words, the court must resort to the provisions of section 84 of the Act. Section 84(1) of the Act is to the effect that in any proceedings, 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 section 84 (2) of the Act are satisfied.

Stated more simply, the four (4) conditions for admissibility of a computer generated evidence under Section 84(2) are:

1. That the statement sought to be tendered was produced by the computer during a period when it was in regular use;

2. That during that period of regular use, information of the kind contained in the document or statement was supplied to the computer;

3. That the computer was operating properly during that period of regular use; and

4. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.

Furthermore, Section 84(4) requires that the party who seeks to tender a computer generated statement or document shall file a certificate:

(i) Identifying the document or statement,(ii) Describing the manner of its production,(iii) Stating the particulars of the device used in the production of the

document.(iv) The Certificate shall be signed by a person occupying a responsible

position in relation to the operation of the relevant device or the management of the relevant activities.

It is note-worthy that the definition of ‘Document’ in Section 258(1)(d) includes ‘any device by means of which information is recorded, stored or retrievable including computer output.’ Section 258 also defines a computer to mean “any device for storing and processing information”.

It is our view that this definition is wide enough to cover all hand-held phones, ipads, ipods, ATM machines, and any other electronic device(s) that store, process and retrieve information. With these provisions, statements from telecommunication companies showing records of call logs, text messages, etc

and even receipts or records of cash withdrawals and other transactions from ATM machines, internet banking, online product purchases, on-line bill payments, e.g. of utility bills, flight bookings and tickets, and other online transaction records, should no longer present difficulty when being tendered in Court, once the stipulated conditions are met.

Also in our view, it should now be fairly easy to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the internet. Whether the provisions are sufficient to deal with issues such as authorship of on-line defamatory material; which, as between the computer printout of the alleged defamatory material and the computer-saved file copy, constitutes the original or primary evidence, etc. remains to be seen in practice. With these extensive provisions, controversies about the admissibility of computer-generated evidence will be largely reduced. Perhaps it is necessary to note that section 84 of the Evidence Act 2011 is a replica of section 65B of the Indian Evidence Act, 1872 as amended, and substantially the same as section 69 of the Police and Criminal Evidence Act,1984, of England and Wales otherwise called the PACE Act.

Conclusion

Without a doubt, the decision of the Supreme Court will increase the confidence and faith of the international business community in the ability of the Nigerian legal system to properly deal with legal issues arising from their commercial transactions which are mostly conducted by electronic technology. However, more needs to be done to develop the practice of the courts in respect of these provisions.

There is a rich well of judicial decisions from foreign jurisdictions on various aspects of electronic evidence which will persuasively assist Nigerian courts, given the novelty of these provisions in our law. It should however be noted that the advancement in computer technology has also brought with it some dangerous negative tendencies, warranting that courts should be very cautious in admitting electronic evidence. Hacking of e-mail addresses, impersonation and identity theft and all manner of manipulations are now possible with computer use. Passwords can be broken into. Photographs can be manipulated. Text messages can be sent with other people’s phone numbers. Documents can be altered. Images can be super-imposed. Diverse things are possible with scanning. Notwithstanding the laudable provisions of the law therefore, extreme circumspection and acute vigilance must still be the key words for courts in this area of evidence. For example, it is going to be more difficult for Courts to detect forged e-documents than forged hard copies. In short, Courts are now more likely to be misled and deceived by computer ingenuity in the weight to be attached to electronic evidence. A laudable provision which will help Courts greatly is to be found in Section 34 (1) (b) (i) & (ii) which is also new. It prescribes guidelines for the Courts to follow in estimating the weight to be attached to computer-generated statements, even when they have been admitted.

Citation:

The case reviewed is reported as Kubor v Dickson (2014) 4 NWLR (Part 1345) 534-594.

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