…a.k.a FRN v. Femi Fani-Kayode 2010 14 NWLR (pt. 1214)…
In 2008, the Retail DNA test kit was pushed into the market. It even won TIME’s Invention of the Year. In that same year, the Svalbard Global Seed Vault, entirely funded by the Norwegian government, was finally completed to store/ preserve different native seed samples from across the world as a sort of insurance against seed loss.
While all these awesomeness was going on in the world, that same year in December, the Economic and Financial Crimes Commission (EFCC) arrested and took Mr. Femi Fani Kayode to the High Court. His offence? Money Laundering, but in like 47 different forms. When they read the charge to him, his reply was that he wasn’t guilty.
While this isn’t entirely important to this article, who is Femi Fani-Kayode and why on earth could he possibly have had a 47 count charge on him for Money Laundering???
Well FFK as he is known, is wikipedia-ed to be a Nigerian politician, an essayist, a poet and a lawyer. Let’s focus on the part we all know: Nigerian politician. He served as the Special Assistant to the Nigerian president from 2003 -2006 after which he was appointed as Minister of Culture and Tourism for a bit. Finally, from 2006 – 2007 he was the Minister of Aviation. So he was in government pretty much.
Anyway, flowing from this plea of not guilty, there had to be a proper trial. This trial would witness both sides (especially the prosecution) present evidence. The prosecution was also to convince the court beyond reasonable doubt that FFK really did what he was accused of.
In discharging this burden and in the course of trial, the prosecution invited its second witness, an officer of the First Inland Bank Plc to give evidence as to the statement of FFK’s account. And in the course of this evidence, they sought to tender a certified true copy of a computer generated statement of FFK’s account.
‘Objection, my Lord!’ / ‘My Lord, I’ll have to object to that!’ / ‘Haha! My Lord, I’m sure the prosecution is pulling the legs of this honorable court by seeking to tender that piece of paper. Learned counsel should know better’.
These are my imaginations of FFK’s lawyer’s reaction to this application by the prosecution. The lawyer’s argument was basically this: that a computer generated statement of account is inadmissible.
Are you thinking: Wait what? How? Did FFK’s lawyer expect the prosecution to produce a handwritten statement of account?
Well, yes, maybe, kinda. And so did the judge, because after the argument before him, he said,
‘Based on all the above analysis, the objection… is hereby sustained. The computer print-out of the statement of account sought to be tendered is hereby rejected as being inadmissible and the said document should be marked tendered and rejected’
The judgement, though sounds weird, was only a product of the Evidence Act we had then. Before the National Assembly envisaged that there would ever be anything useful stored in a computer system, there was no provision for same in the Evidence Act and so there wasn’t a clear category for what evidence gotten from a computer could be called. Primary? Secondary? If secondary then where’s the primary? If primary, how? why?
Furthermore, the Evidence Act contained and contains rules guiding the admissibility of contents of Bankers’ books (e.g. statements of accounts). For these ones, secondary evidence is allowed – e.g. the Certified True Copy of the records. Hence, the contention of FFK’s lawyer and the judge was basically that the computer generated record was not explicitly stated as a proper form of Banker’s book. Upon appeal, however, the Court of Appeal said that ‘The word ‘include’ used in the definition presupposes that there are other means of keeping records of the bank which have not being disclosed in the definition. [The responsibility of investigating the truth] cannot be abandoned simply because the enabling law has failed to name the medium upon which those facts are stated…’. The court further said that ‘Computer printout are copies of bank record and [although they are not original, they have, in this case, been certified as required in the Evidence Act by an officer of the bank giving evidence].
Me reading the judgment:
That was a close one! The Court of Appeal deserves gbosas for that forward-thinking interpretation.
Anyway, the National Assembly has now (in 2011) enacted a new Evidence Act to expressly accommodate computer generated evidence (See Section 84). Although I have my reservations about it (which I NEVER EVER fail to express in presentations or common discussion), I still understand that it is, at least, a step forward.
But I’ll just quickly say (because I NEVER EVER fail to point this out): the provision is vague and too bogus abeg. I mean, computer use in Nigeria is less foreign than it’s a part of our culture. I think it’s ridiculous for the law to say that the source computer has to have regularly been receiving similar kind of information as that which is sought to be presented. I mean, what if the evidence I seek to produce from the computer was first of its kind on that computer? Does that make my evidence inadmissible? There’s also a funny requirement for a certificate that not many people, even lawyers and judges quite understand.
So yes, now our laws are embracing the reality of technology, but are they embracing them so tight as to stifle their development?
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