Introduction

NIGERIAN democratic experience has been punctuated with different challenges ranging from coups d’état, civil wars and political violence, economic instability among others.

The latest is the menace of militant and terrorist groups (with international affiliations) possessing undeniably capability to undermine the unity and sovereignty of Nigeria. The most intimidating of these groups is the Boko Haram, which has launched an “offensive” against the sovereignty of Nigeria with accompanying loss of lives and property of an unprecedented magnitude.

The efforts of security agencies in checkmating the activities of the group have been unsuccessful due to reasons such as the alleged complicity and sabotage of some individuals in government who provide massive support-financial and otherwise to the groups.  The truth of this statement came to bear when Senator Ali Ndume (a serving Senator representing Borno-South Senatorial District) was arrested by security agencies for alleged links with Boko Haram. The basis of the arrest, according to the State Security Services (SSS), was that Senator

Ndume maintained steady lines of communication with a prominent member of the Boko Haram group.

The SSS also claimed to have seized the mobile phones used by Senator Ndume and Ahlis Sunnah Lid Da’awati Wal Jihad Ali Sauda Umar

Konduga Ali Sauda Umar Konduga. The public’s excited reaction to the ‘infallibility” of the “evidence” (in a society where many cases hitherto have been lost on the premise of “lack of evidence”) was further accentuated by the recent amendment to the Evidence Act, which seemingly allows for the admissibility of electronically generated evidence.

Facts of the case

Ndume a serving senator of the Federal Republic of Nigeria was charged with the admissibility of the evidence linking him with the Boko Haram group, which is the focal point of the trial at the Federal High Court, Abuja. The prosecution in its attempt to substantiate the allegation that Senator Ndume had links with the Boko Haram group, sought to tender the following evidence: Two counts of breach of official trust for allegedly disclosing information to unauthorised persons and criminal conduct. Nokia E7 Phone and Nokia 2700 phone belonging to Senator Ndume and a report of an account of the process of exploiting or extracting the contents of the phones and transferring them to three DVDs.

DVDs, which contained data from the seized mobile phones obtained from the process of exploitation carried out by forensic examiners attached to the Special Investigation Panel, Department of State Security Services.

Ali Sauda Umar Konduga

The court has admitted the Nokia phones as Exhibit P5 and P5A. It has also admitted as Exhibit P7- the report prepared by forensic examiner one Aliyu Usman.

There was, however, vehement objection by the defence counsel when the prosecution sought to tender the DVD’s, which allegedly contained forensic extracts from the mobiles phones, which had already been admitted in evidence.

After hearing arguments from both sides, the learned trial judge Honourable Justice G.O. Kolawole, in a considered ruling, overruled the defence counsel’s objections and admitted the DVD’s as Exhibits P8, P8A and P8B.

Arguments of counsel

Defence

The defence counsel, Ricky Tarfa (SAN), objected to the admissibility of the DVDs on the following grounds:

• That by virtue of the provisions of Section 85 and 86 and 258 of the Evidence Act 2011, the DVDs qualified as documents and was secondary evidence and not primary evidence;

• That the DVDs are public documents within the purview of Section 102 of the Evidence Act and thus will require certification before they can be admissible. He contended that the DVD’s had no indication on them and no signature, no description and designation of the person making them. He further submitted that a certification from someone in public service in the form of a signature, description or designation was key so as to guarantee the authenticity of the materials as they can be produced by anybody;

• The DVDs are all computer-generated products and that there are preconditions for admissibility, which are set down in Section 84 (2) (a)-(d) of the Evidence Act;

• In the admissibility of CDs, it is the original or authentic copy that is admissible. And where the original is not available, there ought to be an explanation as to its unavailability.

Prosecution

The prosecution counsel, O.T. Olatigbe in his reply, submitted as follows:

• That the DVDs are secondary evidence; the primary evidence being the mobile phones already tendered and admitted as Exhibits P5 and P5A;

• That the 3 DVDs were mere extractions from the phones, which are the primary evidence;

• That all the facts in the three DVDs are in the mobile phones and the court has a duty to look at the said phones (which are already in Evidence as P5 and P5A);

• That the weight to be attached to the three DVDs will be determined at the end of the case;

• On the issue of whether the DVDs were public documents, the learned prosecutor argued that three DVDs were not public documents and submitted that the maker of the DVDs who had labelled them in his own handwriting was before the court and therefore no additional certification was needed to analyse the DVDs.

Decision of the court

• The court after considering the connection between Exhibit 7 (the account/report explaining how the contents of the phones were exploited and transferred into the DVDs) held that the DVDs were secondary evidence of the phones, which he considered as primary evidence. The court further held that the DVDs were akin to printed copies of a photograph whose negative films (the Phones) have already been tendered in evidence;

• In dismissing the prosecution’s argument that the DVDs are not “computer generated”, the court ruled that by the combined effect of the definitions of “document” and “computer” under Section 258 of the Evidence Act, the said DVDs are “computer generated” and secondary evidence of the data contents of Exhibit “P5” and “P5A” - the mobile phones, thus dispensing with the need

to consider Section 85 and 86 of the Evidence Act, which deal with “proof of contents of documents whether as primary or secondary;

• Having held that the DVDs were “computer generated” and secondary evidence of Exhibit “P5” and “P5A, the court thereafter considered the issue of “whether the fact that the DVDs which are computer generated products are inadmissible having regard to the elaborate steps or procedure stipulated in Section 84(2) (a)-(d) of the Evidence Act;

• On the issue of non-compliance with the conditions laid down in Section 84(2) (a)-(d) of the Evidence Act, the court held that PW3’s testimony, which explained the process of exploitation of the contents of the phones to the DVDs using “tool kits” in the forensic laboratory of the State Security Service may even be superfluous in view of the fact that DVDs have been globally acknowledged as part of the “kits” of computer material for storage of information or programme.

The court further held that after a juxtaposition of the provision of Section 84(2) (a)-(d) of the Evidence Act with the oral testimony of PW3 which was buttressed by Exhibit P7 (the account of how the contents of the phones were downloaded into the DVDs), it would amount to “needless leaning on technicalities” to lean on the side of rejecting the DVDs merely on the ground that they were “computer generated products” and the detailed procedure and steps prescribed by Section 84 (2) (a)-(d) of the Evidence Act were not followed, the court held thus “My view is that against the elaborate testimony of PW3 as to what he did when he “exploited” Exhibit “P5” and “P5A” and the contents of exhibits “P7” already tendered and admitted in evidence, it will be sheer affectation and a needless leaning on technicalities to reject these “computer generated” products for the simple reason that there has been non-compliance or substantial compliance with the provisions in Section 84 (2) (a)-(d) of the Evidence Act4... A testimony such as PW3 has given as to what he did whilst “exploiting” Exhibit P5” and “P5A” to produce the DVDs are in my view, sufficient to assuage any fear which learned Counsel for the defence entertained in the authenticity of the DVDs. The testimony of PW3 as the maker is in my view, sufficient proof of their attestation even without the need for any further “Certificate”. Exhibit P7 was intended by my understanding of the general tenor of PW3’s evidence, to serve as a “purveyor” as to how the contents of the three DVDs were produced;

• The court reasoned that the condition of Section 84 (2) (a)-(d) are merely directory since the witness tendering the document was also the maker of the documents/computer generated products and the provisions are meant to serve as a guide for the admissibility of materials as the DVDs;

• In determining the issue raised by defence-that it is the original or authentic copy of the DVDs that is admissible-the court held that PW3’s testimony to the effect that he submitted the DVDs to PW2 was enough proof that it was the original copies that was tendered in court. The court went further to state thus “in our new and advancing world of information communication technology, I can say that in relation to such “computer generated products”, it is near impossible to differentiate between the “primary original” and the copies made out of it except and until the CDs are played and the quality of what is shown indicate that its production may not be “original”;

• On the issue of certification pursuant to Section 102 of the Evidence Act, the court stated that not all documents produced or prepared by a public officer qualifies to be a public document, even if the extended meaning of a public officer in the Supreme Court case of Ibrahim v J.S.C Kaduna State were to be applied. He made this submission relying on the case of Abdul & 5 Ors v. Benue State University & Anor.7

He, therefore, held the DVDs are electronic evidence, which is not in the realm of ordinary documents. As a result the ordinary rules of certification of public documents may not apply in this case, more so, the maker of the document has identified it as the document he made.

The court also held that it was in the interest of justice to admit the DVDs into evidence.

Issues

Nigerian jurisprudence is transiting into a brave new world where technology will suffuse and dominate the decisions of our courts. Almost all matters whether civil or criminal will soon have a technological flavour. Electronic contracts and capturing of crimes electronically is already part of our daily lives, so we need to be prepared for the challenges of interpretation by our Courts. In fact, electronic evidence is emerging to the extent that brain-imaging technology is expected to be utilised as a means of proof. This suggests that a more flexible approach aimed at a more radical and steady amendments to the rules of evidence will be necessary in Nigeria. With the fast pace of technological advancements as against the recent legislation on electronic evidence, judges if not properly educated, may in their bid to do justice be compelled to adopt a liberal posture in deciding cases.

This will in turn have the effect of producing a “scattered” body of rules of evidence and uncertainty about the correct position of the Nigerian law on electronically generated evidence.

The ruling under review delivered by the Federal High Court is particularly landmark because it is one of the first opportunities for a superior court of record to dissect our new provisions on electronic evidence. It is also very important because it involves a capital offence involving terrorism. Any proceedings that may ultimately lead to the withdrawal of the liberty of any person must be properly scrutinised.

Honourable Justice Gabriel Kolawole’s decision is a mighty leap from the past and I am particularly happy that we are finally on the track to catching up with the rest of the world.

The court’s decision to admit the DVDs that were alleged extractions from the seized telephones and the distinction between primary and secondary evidence serves as the fulcrum of my analysis of this Ruling.

• Kazeem is a Lagos-based ICT lawyer.