Why computerised statement of account is admissible as

evidence in Nigerian courts

By Taiwo Osipitan

THE recent decision of Honourable Justice A. R. Mohammed of the Federal High

Court, in which a computerised statement of account was rejected in evidence during
the trial of Chief Femi Fani-Kayode, has generated and will continue to generate
discomfort within and outside the legal profession.

In the course of the trial, the prosecution sought to tender a computerised statement
of account in order to prove the allegation of money laundering levelled against the
accused. Counsel to the accused objected to the admissibility of the computerised
statement of account. The defence counsel contended that the Evidence Act makes
no provision for the admissibility of computerised statement of account.
Consequently, his lordship was urged by the defence not to admit the computerised
statement of account in evidence. His lordship upheld the objection raised by the
defence counsel. The computerised statement of account was consequently rejected
in evidence.

His lordship was reported to have held that, "a statement of account produced by
way of computer print-out is not admissible under Section 97(1) (b) and 2 (e) of the
Evidence Act, even if the statement of account was relevant to the proceedings" (see
This Day of 27/3/2009 at page 6). After rejecting the computerised statements of
account/document in evidence, his lordship counselled the National Assembly on the
need to quickly amend the Evidence Act in order to ensure admissibility of computer
printouts thus: "There is urgent need for an amendment of the evidence law to cover
admissibility of documents made by means of computer printout since it is clear that
technological methods of producing document now form part of day to day activities
in business transactions particularly in business circles."

The correctness or otherwise of his lordship's decision and the negative impact of the
decision on proof of E Contracts/E Crimes are the reasons for this exercise. It is
evident that unless the Interlocutory decision of his Lordship is re-visited during final
address and/in the final judgment, the prosecution will be hindered in proving that
funds were laundered by the accused through the various accounts, and the charges
of money laundering against the accused would likely fail. And if we may ask, why
allow the prosecution to prove that the accused opened the accounts, only to disable
the prosecution from proving how the accused operated the account/laundered
money through the account? Did his lordship rightly refuse to admit the
computerised statement of account in evidence? Was his lordship's attention drawn
to the binding decisions/pronouncements of Superior Courts on the admissibility of
computer and electronically generated evidence in Nigeria?

It is evident that the rejection of the computerised statement of account by his

lordship, Honourable Justice Mohammed is against the tide of
decisions/pronouncements of the Apex Court (Supreme Court) on the admissibility of
computerised statement of account.

Admittedly, the Evidence Act makes no specific mention of computerised statement

of account, documents produced through typewriters and other mechanical and
electronic devices.
The Act is, however, generally not silent on documentary evidence. A computerised
statement of account is a document and, therefore, admissible as documentary
evidence the same way that typewritten documents and printed books have been
and are being admitted as documents by the courts. By virtue of Section 2(1) of the
Evidence Act, documents are not restricted to pen and paper writings. The scope of
document is wide enough to accommodate computerised statements of account and
writings produced through electronic/mechanical devices. The point should also be
made that there is no provision in the Act, which prohibits the admissibility of
computerized statement of account. It follows that what is not prohibited by the Act
is admissible in evidence, especially where such unprohibited evidence is admissible
at common law and in other jurisdictions.

The Evidence Act does not pretend to be an exhaustive legislation. It evidently does
not cover the whole field of the law of evidence. The Act frankly admits its limitation
and inexhaustiveness in Section 5A, which states: "nothing in this Act shall prejudice
the admissibility of any evidence which would apart from the provision of this Act be
admissible."

In Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) at page 25 the provision of section 5A
of the Evidence Act was construed by the Court of Appeal thus: "under section 5(a)
of the Act, no piece of evidence can be excluded under the common law if the
Evidence Act or any statute in force in Nigeria does not expressly render it
inadmissible.

Section five of the Act would be applicable and particularly useful where the Evidence
Act has not made provision for the reception of evidence or a particular piece of
evidence, but such piece of evidence is admissible under the rule of common law".

It suffices to state that the fact that the Evidence Act does not contain express
provision on the admissibility of computer-generated evidence does not justify the
outright rejection of computerised statements of account in evidence, especially
when there are no provisions in the Act which prohibits admissibility of computerised
statements of account.

Turning to judicial decisions and pronouncements by the Supreme Court and the
Court of Appeal, which are binding of the Federal High Court, it is clear that
computerised statements of account, are relevant, recognised and admissible as
documents and an proof of entries in books of accounts.

As far back as 1969 in the case of Esso West Africa INC. v. Oyegbola (1969) N.S.C.C
pages 354 - 355, the Supreme Court acknowledged the relevance of computer
generated evidence thus:

"Besides, Section 37 of the Evidence Act does not require production of "books" of
account but makes entries in such books relevant for purposes of admissibility ... The
law cannot be and is not ignorant of modern business methods and must not shut its
eyes to the mysteries of the computer.

In modern times, reproduction or inscriptions on ledgers or other documents by

mechanical process are common place and Section 37 cannot, therefore, only apply
to books of account... So bound and the pages not easily replaced."
The Apex Court in 1987 also endorsed the admissibility of computer print out as
secondary evidence. The court held that computerized statements of account are not
in the class of evidence which are completely excluded by the Evidence Act.
Therefore, the computerised statements of account was rightly admitted as
secondary evidence. The court reasoned thus, in Ayeabosi v. R.T. Briscoe Ltd (1987)
3 NWLR Pt. 59 at Page. 108.

"It is important to state that a computerised account which Exhibit p4. was described
to be, does not fall into the category of evidence absolutely inadmissible by Law. In
my opinion, it falls within the category of evidence admissible on the fulfillment of
the conditions prescribed in Section 96 (1) and (2) of the Evidence Act." Per Karibi
Whyte JSC

The Court of Appeal subsequently upheld the admissibility of computerised

statements of account as documentary evidence. Honourable Justice Salami, the
Presiding Justice at the Court of Appeal, Lagos Division, relied on the previous
decisions/pronouncements of the Apex Court and rightly concluded as follows in the
case of Trade Bank Plc v. Chami (2003) 13 NWLR Pt. 836 at Page 216"

"This Section of the Evidence Act (Supra) does not require the production of "books
of Account" but makes entries in such books relevant for admissibility. Exhibit 4 is a
mere entry in the computer or book of account. Although the law does not talk of
"computer" and "computer print-out" it is not oblivious to or ignorant of modern
business world and the technological advancement of the modern jet age. As far
back as 1969, the Supreme Court in the case of ESSO WEST AFRICA INC. V. T.
OYEGBOLA (1969) NWLR page 194, 198 envisaged the need to extend the horizon of
the section to include or cover computer which was virtually not in existence or at
very rudimentary stage ..."

The above decisions/pronouncements are, by virtue of the doctrine of stare decisis,

binding on his Lordship, Honourable Justice A.R Mohammed.

Surely, if his Lordship's attention was drawn to the above decisions, his Lordship
would possibly have arrived at a different decision. It is gratifying that the decision
to exclude the evidence is an interlocutory decision. Accordingly, it is still possible for
the prosecution to invite Honourable Justice Mohammed to re-visit the admissibility
of the computerised statements of account during final address. It is trite that a
wrongly excluded evidence can be admitted at the stage of final address. There can
be no question of issue estoppel/record estoppel in such a situation because the
decision was not a final decision. An Appeal to the Court of Appeal against the ruling
on the admissibility of the document may result in stay of further proceedings. This
will defeat and delay the speedy trial of the case. An Appeal is, therefore,
undesirable from the view point of speedy dispensation of justice.

From the point of law, proof of E commerce/contract and E crimes, there are reasons
for supporting the admissibility of computer generated evidence, notwithstanding the
absence of E-specific provisions in the Evidence Act. We need not wait for the
National Assembly before admitting computer and electronically generated evidence
in Nigeria. There are no provisions in the Act, which support the exclusion of
electronic evidence. Further, it is common knowledge that banks and financial
institutions ledgers have jettisoned the traditional/manual method of recording
transactions in ledgers and account books. Most transactions are on- line and are
recorded through computerised statements of account. If the decision of the Federal
High Court is right, most bank debtors will simply take loans from banks and refuse
to pay their debts because the computerised statements of account narrating the
accumulated debt and interests can not be tendered in evidence during debt
recovery exercises/court proceedings by their banks.

Again, those involved in e-crimes would definitely have a field day because various
e-mails, faxes and other e-messages forwarded to their victims will be inadmissible
in evidence during their trials for e-crimes. What about those involved in rigging and
malpractices in election? They would have windows of escape because the electronic
voters' registers which are necessary to prove that there are more votes than the
registered voters will also be inadmissible in evidence. The list of the negative impact
of exclusion of computer generated evidence is endless. Admittedly, e-specific
evidence law is desirable. However the existence of e specific legislation/provisions is
not a necessary condition for the admissibility of computerised statements of account
and other electronically-generated evidence in Nigeria. Hon. Justice A. R. Mohammed
should, therefore, re-visit his decision which rejected admissible computerised
statements of account at the earliest opportunity.

We cannot afford to utilise law to suffocate the growth of e-commerce. The law of
evidence should not be used to shield e-criminals away from well deserved
convictions. We all must avoid utilising law as an engine for perpetrating fraud.

Prof. Osipitan (SAN) is Head Dept. of Public Law, University of Lagos.