CHAPTER THREE
ICT AND LEGAL PRACTICE
3.1 Introduction
In
this discourse, attempt will be made to explore the meaning of legal practice. Similarly,
we will look into the admissibility of computer records in Nigerian Courts,
prior to the promulgation of the Nigerian Evidence Act, 2011.
Interestingly
however, this sub-head also aims at making it crystal clear that electronically
generated documents are now admissible in Nigerian Courts following the
emergency of the 2011 Nigerian Evidence Act.[1]
The
importance of ICT in Nigerian legal profession will be identified alongside
challenges posited by the advent of ICT in Nigerian legal profession.
Viable
suggestions will be enumerated for a more effective ways of using ICT gadgets
in Nigerian legal profession for effective legal service delivery.
Meaning
of Legal Practice
According
to Echono,[2]
Legal practice is the application of the law
and all its attendant dimensions and ramifications. In this context, the
essence and relevance of studying law is to eventually practice it. It is also
important to state here that legal practice should not be understood and
explained from the very narrow prism of litigation alone, but we must view and
explain legal practice as a multidimensional and sometimes multidisciplinary
vocation that has the law as its hub.
Legal
practice is sometimes used to distinguish the body of judicial or administrative
precedents, rules, polices, customs and doctrines from legislative enactments
such as statutes and public, rather than only to a specific set of parties.[3]
The Black’s Law Dictionary defines legal
practice thus:
The professional
work of a duly licensed lawyer, encompassing a broad range of service such as
conducting cases in court, preparing papers necessary to bring about various
transactions from conveying land to effecting corporate mergers, preparing
legal opinions on various points of law, drafting wills and other
estate-planning documents, and advising clients on legal questions. The term
also includes activities that comparatively few lawyers engage in but that
require legal expertise, such as drafting legislation and court rules.[4]
3.2 ICT and the Law of Evidence
Indeed,
there has been heated controversy over the admissibility of electronically
generated documents in evidence prior to the promulgation of the new Evidence
Act.[5]
The issue centers principally on whether computer print outs are admissible in
evidence and if they are, are they admissible as primary of secondary evidence?
Hence, this
topic will identify the opinions of some legal scholars over the admissibility
of computer print outs in evidence in Nigerian courts prior to the enactment of
the new Evidence Act.
Scholars
view on Computer Records Prior to the 2011 Evidence Act.
Osibanjo,[6] doubted whether electronically generated
evidence will be admissible in the absence of an amendment to the old Evidence
Act 2004.
Akomolede,[7]
simply notes that the emergence of e-commerce and its growing popularity have
provoked fundamental evidential issues especially in relation to the proof of
transactions conducted, through the internet. That the peculiarity of these
issues and the confusion that has also greeted their interpretation by the
courts have exposed the inability of the Nigeria law on Evidence to cope with
the admissibility of the avalanche of electronically generated evidence that is
the hallmark of electronic commercial transactions.
Valentine,[8] thesis is that until such a time that the
legislature can intervene by updating the Evidence Act, the courts must provide
a congenial platform for the resolution of commercial disputes in the age of
information technology.
Sebastian,
is however, of the firm belief that even prior to the enactment of the 2011
Evidence Act, electronically generated evidence is admissible under sections 5
(9) and sections 6-12 (these latter sections dealing with relevancy) of the Evidence
Act 2004.[9]
On
his part, Chukwuemerie,[10] has identified the critical problems
with computer generated evidence. To him, the computer has brought with it new
forms of record keeping in software (microfilms, microchips, diskettes, flash
discs, etc.) that are not by any means
within the general understanding of the word ‘document’. The simplistic
division of documents into originals and copies becomes unrealistic with
respect to several materials used in information transmission and storage. For
instance, when information recorded or stored in the memory of a computer is
printed out on paper, it is not easy to say that the version in the memory is a
document, nor is it easy to assert that the print out is an original or a copy.
It is also not easy to classify an audio tape recording, a video tape
recording, a text message on a GSM telephone, an electronic mail on a computer
screen, information contained in CDs, VCDs or such other things, as originals or
copies.[11]
Chukwuemerie,
does not believe that these challenges of electronically generated material affect
their admissibility under the old Nigerian law of evidence. That they can only
go to the weight attachable to these pieces of evidence after being admitted
given that admissibility is purely a function of relevance[12] and
a relevant piece of evidence will be admitted.
Questions
as to whether or not it is authentic, forged, tampered with or false in what it
asserts only go to the weight the court may attach to it .[13]
However,
notwithstanding the view of legal scholars over the admissibility or inadmissibility
of electronic document in evidence, prior
to the 2011 Evidence Act, it has been held by the Nigerian Supreme court in
Anyaebosi vs R.T. Briscoe Nigeria Ltd,[14]
on whether computer print outs should be admissible as primary or secondary
evidence, that they are admissible under what is now section 97 of the Evidence
Act 2011, as secondary evidence.
Similarly,
the Nigerian court of Appeal held in Nuba Commercial Farms Ltd vs NAL Merchant
Bank ltd & anor,[15] That the admission in evidence by the court
of first instance of computer print outs as secondary evidence of entries in a
banker’s book was wrong because, the relevant provisions of section 97 of the
Evidence Act do not contemplate information stored ‘other than in a book.’
Having
seen the position of computer records with regards to rules of evidence prior
to the 2011 Evidence Act, it would be apposite to see the current position
following the emergence of the Evidence Act 2011.
3.3 Admissibility of Electronically Generated
Documents in Evidence
Following the coming into force
of the 2011 Nigerian Evidence Act, section 84 of the Act,[16]
provides for the admissibility of documents produced by computers. Equally, it
has become an obvious Nigerian rule of evidence that the contents of documents
may be proved either by primary or secondary evidence.[17]
In
effect, section 86 of the Act,[18] provides
for primary evidence. It provides thus:
(1) Primary evidence
means document itself produced for inspection of court.
(2) Where a document
has been executed is several parts, each part shall be primary evidence of the
document.
(3) Where a document
has been executed in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart shall be primary evidence as against
the parties executing it.
(4) Where a number
of documents have all been made by one uniform process, as in the case of
printing, lithography, photocopy, computer or other electronic or mechanical
process, each shall be primary evidence of the contents of the rest; but where
they are all copies of a common original, they shall not be primary evidence of
the contents of the original.
Section 87 of
the Act, provides for secondary evidence. Accordingly, secondary evidence
includes;
(a) Certified copies
given under the provision here after contained in this Act.
(b) Copies made from
the original by mechanical or electronic processes which in themselves ensure
the accuracy of the copy, and copies compared with such copies.
(c) Copies made from
or compared with the original,
(d) Counterparts of
documents as against the parties who did not execute them
(e) Oral accounts of
the contents of a document given by some person who has himself seen it.
Accordingly,
the combined effects of the above sections coupled with the provision of
section 89 (h) which provides that secondary evidence may be given when the
document is an entry in a banker’s book, would show that computer print outs are admissible
as secondary evidence. Therefore, the
Court of Appeal was grossly wrong by holding that the admission of computer print
outs in evidence as secondary evidenced was wrong in Nuba Commercial Farms’
case supra.
Conclusively,
section 84, of the Evidence Act 2011, puts it beyond doubt that computer
documents are admissible in evidence in Nigerian courts. This has long been
acknowledged by the Supreme Court in Anyaebosi’s case supra. It is hoped that
the Nigerian Superior Courts (the Court of Appeal or the Supreme Court) will reconsider
the decision in Nuba Commercial Farms’ case, at the earliest opportunity.
3.4 Importance of ICT in Nigerian Legal
Profession
The use of better information and
communication equipment is a must in legal profession. As we enter the age of
the new electric lawyer, information technology is clearly shaping both legal
practice and also legal profession.[19]
Some
of the advantages of introducing IT into our practice are:[20]
i.
Production
of error-free documents with the use of spell and grammar check facilities of
the computer.
ii.
Communication
by e-mail
iii.
Research
on the internet
iv.
Proper
management of our finances using relevant software.
v.
Production
of legal documents using precedence stored on computer.
Other
significance of ICT in legal profession are:[21]
1. Court-room Technology
Technologist
have studied, formulated and recommended the introduction of audio and/or video
recording devices into the court system. The Americans have been the forerunner
of this. The courtroom 21 projects in the USA have seen the introduction of
this equipment to record verbatim and transcribe all that takes place in the
court. The machine which may have up to
four different tracks for recording, records everything and even separates the
speeches of two people who have spoken at the same time in court. What is
recorded can then be manually or automatically transcribed for paper viewing.
The proceedings may also be recorded on compact discs (CD).
2. Legal Software:
The
introduction and use of appropriate legal software can enhance communication skills for lawyers. These
software programs make use for easy and convenient management of information
like research on library books, organizing accounts or finances, court case
management etc. Lawyers can then have almost total control of information now
available at their fingertips. Of course, all these make the practice of the
law more organized and less stressful. Furthermore, it enhances quicker
communication.
The
customized software makes research and referencing, document assembly and
management, production of legal documents, office management, law library
management, case monitoring, invoicing and billing, income and expenditure monitoring
easy. Since most of the documents produced in a law office are a continuous
stream of repetitions, the legal IT
software have inbuilt machinery and fields for easy retrieval of precedence
etc.
3. Audio Visual Technology
The
audio visual facility enables representations to be made graphically on-screen
for clearer and better understanding of issues being canvassed. For example,
this technology can be used during chambers meetings. A witness can use this
facility to graphically demonstrate to the court the scene of an accident. This
will make for better understanding of the surrounding circumstances. Lawyers
can facilitate during their address by using the power point program facility
to emphasize the points they want to make and also show on screen the cases
they are referring to without the need to continually spell out words etc as
the judge can see everything on screen. The court can refer to the diskette
version of the presentation later. Visual images convey powerful conscious and
unconscious message
4. E-mail
The internet provides the facility to send
messages by e-mail. Text can be sent at any time to any e-mail address in the
world, cheaply and quickly. The use of the e-mail facility to send and receive
message has reduced expenditure on local and international telephone calls. The
use of e-mail also has the advantage of avoiding
expenses on transportation for delivery of documents.
Lawyers can send information and update on
cases to their clients within and outside the country at little cost and
expeditiously.
3.5 Challenges of ICT in Nigerian Legal
Profession
To
every new development, there are legal implications. The use of IT definitely
has its own fair share of legal implications and areas of dispute which a legal
practitioner must watch out for. This is not simply because they can be very
good sources of new briefs and hence another fee earning source, but some of
them are equally areas that may cause exposure to liabilities with respect to an average user, a lawyer
inclusive. Such areas include but not limited to, issues of copyright and
disputes arising out of trademark registration with respect to the internet.[22]
Also
problematic is the issue relating to cyber crime. These challenges will be
treated in the next chapter.
3.6 Suggestions to a More Effective
Utilization of ICT in Nigerian Legal
Profession.
To be effective, certain things have got
to be put in place. The use of IT in legal profession has become particularly
important because the work of legal practitioners involves a high level of
documentation and information processing, storage and retrieval which comes through
efficient use of IT gadgets. Thus, the implementation of the under listed
suggestions will undoubtedly enable Nigerian lawyers to compete favorably with
colleagues in advanced countries in the use of IT techniques for legal service
delivery. To achieve this success, the following suggestions shall be in place:
1. Mass IT Education
There
should be mass IT education throughout the country beginning from nursery school
to tertiary level. To make this happen, ICT related subjects/ courses shall be
made obligatory as one of the subjects of study from kindergarten to tertiary
level.
There
should be seminars, workshops and television programs on the need to acquire IT
skills by Nigerian students in general and law students in particular. This
should be sponsored not only by the government, non-governmental organizations
and other well meaning Nigerians should give a helping hand.
2.
Training of Legal Practitioners
Legal practitioners,
judges and lawyers should be adequately trained on the culture of using IT in
the discharge of their duties. To make this work, the Nigerian Bar Association,
should map out plans which aims at encouraging/directing judges to deliver
their judgments through IT gadgets. Conferences
and workshops should be organized for Nigerian lawyers on how to benefit from
IT usage.
Similarly,
law students should be taught computer in the course of reading and studying
law in the university.
3.
Promulgation of
ICT laws by Nigerian legislature
Nigerian legislature should make
good laws that would protect the use of ICT in Nigeria. On this note, their
dogged effort which materialized in the emergence of the new Evidence Act 2011,
is praise worthy. This is because, it provides among other things, for the
admissibility of electronic documents in evidence.[23]
It
is therefore recommended that the Nigerian legislature should enact more laws
to regulate cyber crime related offences in the country.
[1] Evidence
Act 2011
[2]
Audu Echono, ‘ICT And the Advancement of
Legal Studies and Practice in Nigeria’
Thelawyerschronicle.com>Home>Internet
law (visited 24th May, 2013).
[3]
Ibid
[4]
Bryan A. Garner, ‘Black’s Law Dictionary,’
Ninth Edition, (Texas:West Publishing Co, 2009) P1291.
[5] Evidence
Act 2011.
[6]
Yemi Osibanjo, ‘Electronically Generated
Evidence’ In Afe Babalola-law & Practice of Evidence in Nigeria, 2011
at pp 243-273.
[7]
T.I. Akomoledge, ‘Contemporary Legal Is sues
in Electronic Commerce in Nigeria’ (2003) 3 Potchefstroom Electronic Law
Journal.. current Trends in Law & Practice Journal vol. 1 2011 p 39.
[8]
Valentine B. Ashi, ‘Challenges of
Electronic Banking and Debt Recovery in Nigeria: The Issue of Admissibility of Computer
Print out of Customs Statements of Account
in Judicial Proceedings’ [2003-2005]
ABU Journal of commercial Law Vol. 2, No 2 at pp 87-97.
[9] Sebastian
Hon, ‘Law of Evidence in Nigeria:
Substantive and procedural’. 2006 at pp 754-767.
[10]
Andrew I. chukwuemerie, ‘Affidavit
Evidence and Electronically Generated materials is Nigerian courts’ (2006) 3:
3
Script –ed 176-202.Curent Trends in Law and Practice Journal vol. 1 2011 p 41.
[11]
Ibid Andrew I. Chukwuemerie.
[12]
Jacob vs Attorney General, Akwa Ibon state [2002] FWLR (pt 86) 578 CA.
[13] Ibid
Andrew I. Chukwuemerie.
[14]
[1987] 3 N. W. L. R 84 (Part 59)
[15]
[2001] 16 N.W.L.R 510 (PART 740).
[16] Evidence
Act 2011.
[17]
Section 85 of the Evidence Act 2011.
[18]
Evidence Act 2011
[19]
Mrs. Roli Harriman, ‘Information Technology
and Communications Skills’. Current Trends in law & Practice Journal Vol.
1 2011 p 106.
[20]
Ibid Mrs. Roli Harriman
[21]
Ibid Mrs. Roli Harriman.
[22] Mr.
Kanyinsola Ajayi, ‘Information Technology
and Legal Practice.’ Continuing legal Education Workshop Series A journal workshop series 2003/2004 . A
Journal of the Nigerian Bar Association.
P 12
[23]
Section 84 of the Evidence Act 2011.