MAY 2015

THE IMPACT OF SUPREME COURT DECISION IN KUBOR v. DICKSON (2014) 4

NWLR (Part 1345) 534-594 ON THE DEVELOPMENT OF E-COMMERCE IN NIGERIA: ISSUES AND PROSPECTS

Author: Olushola Abiloye1 Introduction:

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. We now live in an electronic age where everyday transactions are conducted on the platform of electronic devices. In the event of dispute, parties are bound to rely on electronic evidence.

This reality orchestrated the long and vociferous clamor for a wholesome amendment of the 2004 Evidence Act. It was thus a welcome development when the Evidence Act was amended in 2011. This is a laudable development in Nigeria’s legal and commercial jurisprudence in view of global advancement in information and communication technology. Hitherto, admissibility of electronic evidence had been controversial due to the absence of specific provisions in the repealed Act, and although even within the purview of the limited provisions of the repealed Act, the Supreme Court had long held in the case of Esso W.A. v. Oyegbola (1969) NMLR 194 that computer print-outs were admissible. Curiously, this uncertainty continues to pervade the Nigeria legal system notwithstanding that this decision of the Supreme Court had also been followed in a few other cases all decided under the provisions of the repealed Act.

1 Olushola Abiloye is a legal practitioner with Messers Adepetun, Caxton-Martins, Agbor & Segun (ACAS-LAW)

Instructively, one of the cardinal codifications in the Evidence Act 2011 are the provisions regarding the concept of document and the admissibility of electronic evidence in sections 84, 258 and 34(1)(b). These provisions received judicial imprimatur in the case of Kubor v Dickon – the case under review. Without a doubt, this 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. Lawyers who handle maritime matters, energy, aviation and even oil and gas, for example, will tell you how relieved they and their clients are by these provisions, as virtually all of their transactions are electronically based.

The focus of this work therefore is to examine the case of Kubor v Dickson and the salient provisions of the Act relating to admissibility of electronic evidence vis-à-vis the concept and development of e-commerce in Nigeria.

Synopsis 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. They tendered from the Bar a 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 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. In the lead 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.”

Concurring, however, Ogunbiyi, JSC reasoned that the electronically generated documents were in the nature secondary evidence. He concluded 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 electronic evidence in Nigeria. Second, it re-iterates the condition for 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:

Identifying the document or statement,

Describing the manner of its production,

Stating the particulars of the device used in the production of the document.

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 the writer’s 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, it should now be fairly easy to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the internet. Admissibility of evidence in online defamation is particularly important in view of the shocking level of recklessness that some online commentators and bloggers display. 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 largely reduce.

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.

Kubor v Dickson & E-Commerce in Nigeria

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. 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. 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.

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.

Before now, our law does not clearly recognize electronic evidence in any of its provisions. This is not surprising because all the legal concepts and indeed evidence envisaged under the Evidence Act are based on a tangible medium e.g. “document”, “object”, “picture”, etc. Section 2 of the old Evidence Act defines a document by reference to a tangible medium.

In Nigeria, financial institutions and companies have employed the use of ICT in the provision and delivery of services. Point of Sale (POS) machines and Automated Teller Machines (ATM) are now basic tools for financial transactions. Thus, the records of transaction are no longer in ledgers, but computers and other storage devices. The emergence of e-commerce and its growing popularity provoked fundamental evidential issues especially in relation to the proof of transactions conducted through the internet. These peculiar issues underscores the amendment of the Evidence Act to cope with the avalanche of electronically-generated evidence which is the hallmark of electronic commercial transactions. Happily, in addition to the foregoing, significant efforts at an expansive regulation of e-commerce-related activities are still at the stage of Draft Bills before the National Assembly. The relevant bills are the Nigerian Bill on Cyber Crimes and the Electronic Transactions Bill, which is modeled on the UNCITRAL Model Law on e-commerce.

One of the keys to growth in e-commerce is connectivity. Internet access in Nigeria is getting better as Internet Service Providers (ISPs) continue to increase. Nigeria’s internet subscriber base rose from 48.2 million in June 2013 to 67.4 million in June 2014. This represents a density of 40 percent, placing

the country above the African average of around 16 percent, as estimated by McKinsey & Company.

Issues and Prospects

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.

More importantly however, there is an urgent need now for judges to be trained not just in basic computer literacy but in serious computer intelligence, cyber-crime detection, imaging and forensic evidence. Not just Judges, but Lawyers also. This is the only way to ensure that justice is not sacrificed on the altar of 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. This is a welcome safe-net in our view for the Courts, but it does not replace the need for deep internet intelligence.

Comments:

In Nigeria, significant efforts at the regulation of e-commerce-related activities are still at the stage of Draft Bills before the National Assembly. The relevant bills are the Nigerian Bill on Cyber Crimes and the Electronic Transactions Bill, which is modeled on the UNCITRAL Model Law on e-commerce. Interestingly, sometime in November 2014, the Nigeria’s National Assembly passed the Cybercrime Bill 2013. It is hoped that this decision of the Supreme Court will serve as a catalyst to e-commerce in Nigeria

Olushola Abiloye is a legal practitioner with Messers Adepetun, Caxton-Martins, Agbor & Segun (ACAS-LAW)

Qualification

The contents herein are meant for general information and do not amount to

legal advice. The author or Adepetun Caxton- Martins Agbor & Segun accept no

legal responsibility for any loss or damage that may arise from reliance on

information contained in this publication. All enquiries to be addressed to:

Olushola Abiloye at Oabiloye@acas-law.com

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